Cruz v. Biter et al

Filing 5

ORDER DENYING Plaintiff's 3 Motion to Proceed IFP and REQUIRING Plaintiff to Pay the Filing Fee in Full; Twenty-one (21) Day Deadline signed by District Judge Anthony W. Ishii on 3/6/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,
Plaintiff,

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v.

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BITER, et al.,

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Defendants.

Case No. 1:17-cv-0084-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND REQUIRING
PLAINTIFF TO PAY THE FILING FEE IN
FULL
(ECF No. 3)
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

19 pursuant to 42 U.S.C. § 1983 on January 19, 2017. (ECF No. 1.) Plaintiff seeks leave to
20 proceed in forma pauperis in this case. (ECF No. 3.)
21 I.

Motion to Proceed In Forma Pauperis

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Plaintiff is subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a

23 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior
24 occasions, while incarcerated or detained in any facility, brought an action or appeal in a
25 court of the United States that was dismissed on the grounds that it is frivolous,
26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner
27 is under imminent danger of serious physical injury.”
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Plaintiff has brought more than three actions that were dismissed for failing to

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2 state a claim.1

The only question remaining is whether Plaintiff is under imminent

3 danger of serious physical injury.
The imminent danger exception applies if “the complaint makes a plausible

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5 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time
6 of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The Ninth Circuit
7 interprets “imminent danger” to mean “ongoing danger,” meaning the prisoner must
8 allege that prison officials have continued with a practice that has injured him or others
9 similarly situated in the past. Id. at 1056-57. Allegations that are vague, speculative, or
10 conclusory will not “plausibly” show “imminent danger.” See Reberger v. Baker, 657
11 Fed. Appx. 681, 684 (9th Cir. 2016); Andrews, 493 F.3d at 1057 n.11.
Here, a review of Plaintiff’s complaint demonstrates that he is not at imminent

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13 risk of suffering “serious physical injury.” At the time Plaintiff filed this complaint, he was
14 (and still is) incarcerated at Pelican Bay State Prison.

However, the conspiracy,

15 retaliation, and excessive force that are described in the Complaint all occurred at Kern
16 Valley State Prison.

Because Plaintiff is at a different facility and away from the

17 Defendants and Kern Valley State Prison, he is not in imminent danger. See Palmer v.
18 New York State Dept. of Corr., 342 Fed. Appx. 654, 656 (2d Cir. 2009) (finding no
19 imminent danger when plaintiff’s complaint related to conditions at prisoner from which
20 he had been transferred prior to filing the complaint); Flemings v. Gray, 2015 U.S.Dist.
21 LEXIS 169052, *6 (E.D. Cal. Dec. 16, 2015) (same); Gonzales-Turner v. Sandor, 2015
22 U.S. Dist. LEXIS 86689, *3 (E.D. Cal. July 2, 2015) (same).
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505
(9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Plaintiff has filed numerous
unsuccessful cases in the Eastern District of California under the names “Guillermo Trujillo Cruz,”
“Guillermo Cruz Trujillo,” and “Guillermo Trujillo.” The Court takes judicial notice of the following four
cases: Cruz v. Munoz, No. 1:14-cv-01215-SAB (PC) (E.D. Cal.) (dismissed for failure to state a claim on
May 17, 2016); Cruz v. Munoz, No. 1:14-cv-00976-DLB (PC) (E.D. Cal.) (dismissed for failure to state a
claim on May 11, 2016); Cruz v. Ruiz, No. 1:14-cv-00975-SAB (PC) (E.D. Cal.) (dismissed for failure to
state a claim on January 6, 2016); Trujillo v. Sherman, No. 1:14-cv-01401-BAM (PC) (E.D. Cal.)
(dismissed for failure to state a claim on April 24, 2015).

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to proceed in forma pauperis in this action (ECF

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No. 3) is DENIED;
2. Plaintiff is directed to pay the $400 filing fee in full within twenty-one (21)

days of this order; and
3. The failure of Plaintiff to timely pay the filing fee will result in the dismissal of

this case without further notice.

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IT IS SO ORDERED.

11 Dated: March 6, 2017

SENIOR DISTRICT JUDGE

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