Cruz v. Savioe

Filing 18

ORDER to SHOW CAUSE Why Case Should Not be Consolidated With Trujillo v. Savoie, Case No. 1:18-cv-00990-EPG (PC); ORDER to Show Cause Why In Forma Pauperis Should Not be Revoked, signed by Magistrate Judge Barbara A. McAuliffe on 8/6/18. Show Cause Response Due Within Twenty One Days. (Marrujo, C)

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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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v.

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Case No. 1:17-cv-01474-DAD-BAM (PC)
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE CONSOLIDATED WITH
TRUJILLO V. SAVOIE, CASE NO. 1:18-CV00990-EPG (PC)

SAVIOE, et al.,

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Defendants.

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ORDER TO SHOW CAUSE WHY IN FORMA
PAUPERIS SHOULD NOT BE REVOKED
TWENTY-ONE (21) DAY DEADLINE

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

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s first amended complaint against Defendant Savoie1 for retaliation in violation of the

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First Amendment. (ECF No. 17.) Defendant Savoie has not yet been served.
I.

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Consolidation with Case No. 1:18-cv-00990-EPG (PC)
Federal Rule of Civil Procedure 42(a) permits the Court to consolidate actions involving a

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common question of law or fact, and consolidation is proper when it serves the purposes of

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judicial economy and convenience. “The district court has broad discretion under this rule to

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consolidate cases pending in the same district.” Investors Research Co. v. U.S. Dist. Ct. for the

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Although spelled “S. Savioe” on the docket, a review of Plaintiff’s original and first amended
complaints indicates that the correct spelling of Defendant’s name is “Savoie.”
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Cent. Dist. of Cal., 877 F.2d 777 (9th Cir. 1989). In determining whether to consolidate actions,

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the Court weighs the interest of judicial convenience against the potential for delay, confusion,

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and prejudice caused by consolidation. Sw. Marine, Inc. v. Triple A. Mach. Shop, Inc., 720 F.

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Supp. 805, 807 (N.D. Cal. 1989).

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The Court has reviewed the first amended complaint in this case, as well as the complaint

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in Trujillo v. Savoie (“Trujillo”), Case No. 1:18-00990-EPG, filed July 19, 2018. Both

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complaints appear to be based on the same factual allegations, including Defendant Savoie’s

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filing of a false Rule Violation Report against Plaintiff on April 27, 2016, in retaliation for

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Plaintiff filing a 602 grievance against Defendant Savoie for sexual misconduct on April 22,

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2016. As Defendant Savoie has already been served in Trujillo, and the instant case has already

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been screened, it appears in the interest of judicial economy to consolidate these actions pursuant

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to Federal Rule of Civil Procedure 42(a)(2).

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II.

Plaintiff’s In Forma Pauperis Status

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On November 21, 2017, Plaintiff’s motion to proceed in forma pauperis was granted.

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(ECF No. 7.) Upon further review, it appears that Plaintiff is not entitled to proceed in forma

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

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prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.”2

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///

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The Court takes judicial notice of the following United States District Court cases: (1) Trujillo v.
Sherman, Case No. 1:14-cv-01401-BAM (E.D. Cal.) (dismissed on April 24, 2015 for failure to state a
claim), aff’d, Case No. 15-15952 (9th Cir. May 6, 2016) and (2) Cruz v. Gomez, Case No. 1:15-cv-00859EPG (E.D. Cal.) (dismissed on February 3, 2017 for failure to state a claim), aff’d, Case No. 17-15358 (9th
Cir. October 25, 2017).
The Court also takes judicial notice of the following United States Court of Appeals case: Trujillo
v. Gonzalez-Moran, Case No. 17-15200 (9th Cir.) (dismissed on August 21, 2017 as frivolous).

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The Court has reviewed Plaintiff’s first amended complaint and his allegations do not

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satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047,

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1055–56 (9th Cir. 2007). As noted above, Plaintiff alleges that after he filed a 602 grievance

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against Defendant Savoie for sexual misconduct on April 22, 2016, Defendant Savoie retaliated

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by filing a false Rule Violation Report against Plaintiff on April 27, 2016. (ECF No. 11.) This

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events are alleged to have occurred while Plaintiff was housed to Kern Valley State Prison, more

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than a year prior to the filing of the complaint. Plaintiff is currently housed at Pelican Bay State

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Prison.

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III.

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Conclusion and Order
Accordingly, IT IS HEREBY ORDERED as follows:

1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall file a
written response showing cause why:

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a. This action should not be consolidated with Trujillo v. Savoie, Case No. 1:18-cv-

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00990-EPG (PC); and
b. Plaintiff’s in forma pauperis status should not be revoked pursuant to 28 U.S.C.

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§ 1915(g);
2. Plaintiff’s failure to comply with this order may result in sanctions, including
dismissal of this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 6, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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