Cruz v. Stebbins et al

Filing 7

FINDINGS and RECOMMENDATIONS, Recommendations That Plaintiff's in Forma Pauperis Status be Revoked Under 28 U.S.C. § 1915(g) and That Plaintiff be Required to Pay the $400.00 Filing Fee in Full Within Thirty Days 1 , signed by Magistrate Judge Gary S. Austin on 4/30/2018: 14-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,

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Plaintiff,

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vs.

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STEBBINS, et al.,
Defendants.

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1:17-cv-00789-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
IN FORMA PAUPERIS STATUS BE
REVOKED UNDER 28 U.S.C. § 1915(g)
AND THAT PLAINTIFF BE REQUIRED
TO PAY THE $400.00 FILING FEE IN
FULL WITHIN THIRTY DAYS
(ECF No. 1.)
OBJECTIONS, IF ANY, DUE IN 14 DAYS

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I.

BACKGROUND

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Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 12, 2017, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.) On June 12, 2017, the court issued

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an order granting Plaintiff leave to proceed in forma pauperis with this action. (ECF No. 4.)

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides

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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has,
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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action

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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is

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under imminent danger of serious physical injury.”

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III.

ANALYSIS

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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. §

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1915(g) and should be precluded from proceeding in forma pauperis unless Plaintiff was, at the

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time the Complaint was filed, under imminent danger of serious physical injury. Plaintiff has

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filed numerous unsuccessful cases in the Eastern District of California under the names

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“Guillermo Trujillo Cruz,” “Guillermo Cruz Trujillo,” and “Guillermo Trujillo.” Court records

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reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that

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were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be

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granted. The Court takes judicial notice of the following four cases: (1) Cruz v. Munoz, No.

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1:14-cv-01215-SAB (PC) (E.D. Cal.) (dismissed for failure to state a claim on May 17, 2016);

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(2) Cruz v. Munoz, No. 1:14-cv-00976-DLB (PC) (E.D. Cal.) (dismissed for failure to state a

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claim on May 11, 2016); (3) Cruz v. Ruiz, No. 1:14-cv-00975-SAB (PC) (E.D. Cal.) (dismissed

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for failure to state a claim on January 6, 2016); and (4) Trujillo v. Sherman, No. 1:14-cv-

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01401-BAM (PC) (E.D. Cal.) (dismissed for failure to state a claim on April 24, 2015).

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The availability of the imminent danger exception turns on the conditions a prisoner

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faced at the time the complaint was filed, not at some earlier or later time. See Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less

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obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057

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n.11. Imminent danger of serious physical injury must be a real, present threat, not merely

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speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide

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“specific fact allegations of ongoing serious physical injury, or a pattern of misconduct

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evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d

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1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient.

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White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the “imminent danger”
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exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is

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real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

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The Court has reviewed Plaintiff’s Complaint in this action and finds that Plaintiff does

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not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint,

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Plaintiff alleges that defendants at Kern Valley State Prison made verbal and written threats

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against him, in retaliation for Plaintiff filing prison grievances. Plaintiff also alleges that

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defendants threatened to have him assaulted, and on September 15, 2015, and October 19,

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2015, Plaintiff was assaulted by other inmates. Plaintiff alleges that defendants continued to

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make threats against him and he was under serious risk of being assaulted because of

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defendants’ orders, wishes, and demands.

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Plaintiff has not shown that he was under serious risk of imminent physical harm at the

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time he filed the Complaint in this action. Plaintiff was incarcerated at Pelican Bay State

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Prison when he filed the Complaint for this action on June 12, 2017. (ECF No. 1 at 1:23-24.)

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Therefore, Plaintiff was not at risk of harm by any of the defendants when he filed the

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Complaint as the defendants are located at Kern Valley State Prison while Plaintiff is located at

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Pelican Bay State Prison. The Complaint is devoid of any showing that Plaintiff was under

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imminent danger of serious physical injury at the time he filed the Complaint.

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Therefore, Plaintiff’s in forma pauperis status should be revoked, and he should be

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required to submit the appropriate filing fee in full for this action before this case proceeds.

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IV.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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Plaintiff’s in forma pauperis status be revoked, pursuant to 28 U.S.C. § 1915(g);
and

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Plaintiff be required to submit the $400.00 filing fee in full for this action,
within thirty days.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days from the date of service of these findings and recommendations, Plaintiff may file
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Such a document should be captioned “Objections to

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 30, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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