Cruz v. Savioe

Filing 26

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's In Forma Pauperis status be revoked; Plaintiff be ordered to pay the $400.00 initial filing fee in full to proceed with this action re 11 Amended Prisoner Civil Rights Complaint; referred to Judge Drozd, signed by Magistrate Judge Barbara A. McAuliffe on 10/24/18. Objections to F&R due 14-Day Deadline(Martin-Gill, S)

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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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FINDINGS AND RECOMMENDATIONS TO
REVOKE IN FORMA PAUPERIS STATUS

v.

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Case No. 1:17-cv-01474-DAD-BAM (PC)

SAVIOE,

(ECF Nos. 18, 23)
FOURTEEN (14) DAY DEADLINE

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Defendant.

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I.

Background
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. Plaintiff initiated this

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action on November 2, 2017. (ECF No. 1.) Plaintiff’s motion to proceed in forma pauperis was

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granted on November 21, 2017. (ECF No. 7.) This action proceeds on Plaintiff’s first amended

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complaint against Defendant Savoie1 for retaliation in violation of the First Amendment. (ECF

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No. 17.)
On August 6, 2018, the Court issued an order for Plaintiff to show cause why his in forma

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pauperis status should not be revoked.2 (ECF No. 18.) Plaintiff was informed that he is subject

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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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The order also required Plaintiff to show cause why this case should not be consolidated with Trujillo v.
Savoie, Case No. 1:18-cv-00990-EPG (PC). (ECF No. 18.) In response, Plaintiff filed a motion to consolidate.

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to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a prisoner bring a civil action . . .

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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained

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in any facility, brought an action or appeal in a court of the United States that was dismissed on

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the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

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granted, unless the prisoner is under imminent danger of serious physical injury.”3

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Plaintiff filed a response on August 23, 2018. (ECF No. 23.) In his response, Plaintiff

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argues that he gave prison officials notice that he was in imminent danger of serious physical

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injury at the time he filed his complaint, based on specific fact allegations of ongoing serious

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physical injuries and allegations that prison officials were engaged in an ongoing pattern of

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placing Plaintiff in harm and serious physical injury. As evidence, Plaintiff points to numerous

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past cases he has filed in this district. (Id. at 1.) Plaintiff further argues that prison officials are

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continuing a practice that has injured him in the past, thus satisfying the imminent danger

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exception to the three strikes rule.

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II.

Discussion
The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy

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the imminent danger exception to section 1915(g).4 Andrews v. Cervantes, 493 F.3d 1047,

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1053−55 (9th Cir. 2007). Plaintiff alleges that after he filed a 602 grievance against Defendant

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Savoie for sexual misconduct, Defendant Savoie retaliated by filing a false Rule Violation Report

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against Plaintiff. (ECF No. 11.) These events are alleged to have occurred while Plaintiff was

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housed at Kern Valley State Prison, more than a year prior to the filing of the complaint.

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Plaintiff’s conclusory allegation that the claims at issue are part of a larger pattern or practice of

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(ECF No. 23.) On October 16, 2018, District Judge Drozd consolidated the cases, designated this action as the lead
case, and closed Case No. 1:18-cv-00990. (ECF No. 25.)
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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); (2) Trujillo v. Ruiz, Case No. 1:14-cv-00975-SAB (E.D. Cal.) (dismissed on
January 6, 2016 for failure to state a claim), aff’d, Case No. 16-15101 (9th Cir. December 15, 2017); (3) Cruz v.
Gomez, Case No. 1:15-cv-00859-EPG (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 expresses no opinion on the merits of Plaintiff’s claims.

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prison officials to place him in imminent danger of serious injury is not sufficient to meet the

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exception. Plaintiff has not alleged in his complaint or his response to the order to show cause

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that he was in any imminent danger of serious physical injury at Pelican Bay State Prison, where

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he was housed at the time he filed his complaint.

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The Court reviewed the cases cited by Plaintiff in his response, and finds that those

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allegations also are insufficient to satisfy the imminent danger exception. While Plaintiff alleges

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in each case that he has been the victim of some type of retaliatory conduct from prison officials,

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none of those incidents occurred at Pelican Bay State Prison.5 Plaintiff’s conclusory allegation

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that he has suffered retaliatory actions by prison staff at other institutions in the past is not

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sufficient to demonstrate that he is now in danger of serious physical injury at a new institution.

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III.

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Conclusion and Recommendation
Based on the foregoing, Plaintiff has not alleged any imminent danger of serious physical

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injury at the time of filing and has not satisfied the exception from the three strikes bar under 28

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U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action.

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Accordingly, it is HEREBY RECOMMENDED that:

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1. Plaintiff’s in forma pauperis status be revoked; and

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2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this

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action.

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These Findings and Recommendations will be submitted to the United States District

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

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fourteen (14) days after being served with these Findings and Recommendations, the parties may

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file written objections with the court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” The parties are advised that the failure to

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file objections within the specified time may result in the waiver of the “right to challenge the

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See Trujillo v. Hithe, Case No. 2:14-cv-00584-JAM-AC (E.D. Cal.) (Folsom State Prison); Cruz v. Jeffreys,
Case No. 3:15-cv-02826-JLS-PCL (S.D. Cal.) (Richard J. Donovan Correctional Facility); Trujillo v. Biter, Case No.
1:14-cv-01370-LJO-EPG (E.D. Cal.) (Kern Valley State Prison); Cruz v. Padilla, Case No. 1:18-cv-01015-AWIBAM (E.D. Cal.) (Kern Valley State Prison); and Trujillo v. Munoz, Case No. 1:14-cv-01215-AWI-SAB (E.D. Cal.)
(Corcoran Substance Abuse Treatment Facility).

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 24, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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