Cruz v. Savioe

Filing 35

ORDER DENYING 34 Motion for Reconsideration of Order Revoking In Forma Pauperis Status, signed by District Judge Dale A. Drozd on 5/28/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE 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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SAVIOE,

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No. 1: 17-cv-01474-DAD-BAM
ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER
REVOKING IN FORMA PAUPERIS STATUS
(Doc. No. 34)

Defendant.

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Plaintiff Guillermo Trujillo Cruz, a state prisoner, is proceeding pro se in this civil rights

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

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was granted on November 21, 2017. (Doc. No. 7.)

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On August 6, 2018, the assigned magistrate judge issued an order requiring plaintiff to

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show cause in writing why his in forma pauperis status should not be revoked pursuant to 28

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U.S.C. § 1915(g). (Doc. No. 18.) Plaintiff filed a response on August 23, 2018. (Doc. No. 23.)

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On October 24, 2018, the magistrate judge issued findings and recommendations,

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recommending that plaintiff’s in forma pauperis status be revoked and that he be required to pay

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the $400.00 filing fee in full to proceed with this action. (Doc. No. 26.) After seeking and

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receiving an extension of time, plaintiff filed both a second response to the earlier issued order to

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show cause as well as objections to the October 24, 2018findings and recommendations. (Doc.

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Nos. 29, 31.)
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On March 26, 2019, following de novo review of the case, the undersigned adopted the

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findings and recommendations in full and ordered plaintiff to pay the required filing fee in full

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within twenty-one (21) days to proceed with this action. (Doc. No. 33.) Plaintiff was warned that

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failure to pay the filing fee would result in dismissal of this action. (Id. at 3.)

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Currently before the court is plaintiff’s motion to correct his motion to proceed in forma

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pauperis, filed April 8, 2019. (Doc. No. 34.) The court construes the filing as a motion for

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reconsideration.

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LEGAL STANDARDS

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Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may

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relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1)

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mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief

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from the operation of judgment.” Relief under Rule 60 “is to be used sparingly as an equitable

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remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances

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. . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted) (addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must

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demonstrate both injury and circumstances beyond his control . . ..” Id. (internal quotation marks

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and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that plaintiff show

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“what new or different facts or circumstances are claimed to exist which did not exist or were not

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shown” previously, “what other grounds exist for the motion,” and “why the facts or

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circumstances were not shown” at the time the substance of the order which is objected to was

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considered.

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).
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DISCUSSION
Plaintiff argues that in his original responses to the magistrate judge’s order to show cause

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and findings and recommendations, he mistakenly argued that he was indigent and unable to

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afford the costs of the filing fee, rather than that he was in imminent danger of serious physical

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injury. (Doc. No. 34 at 2.) Plaintiff now contends that he was in fact under imminent danger of

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serious physical injury at the time his complaint was filed. (Id.) In support of this contention,

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plaintiff argues that defendant Savoie fabricated a disciplinary report on April 27, 2016, falsely

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accusing plaintiff of a sex crime or similar infraction, in retaliation for plaintiff’s filing of an

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inmate grievance against her. (Id. at 3.) As a southern Hispanic inmate, plaintiff states that the

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nature of the allegedly false disciplinary charge would get plaintiff targeted for assault on the

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main yard or when he was transferred to another institution. (Id.) In support of this contention,

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plaintiff explains that two months later, on June 30, 2016, defendant Savoie and correctional

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counselor A. Leyva conspired to have him transferred to High Desert State Prison. (Id. at 2.) On

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August 1, 2016, after his transfer, plaintiff alleges that he was the victim of an inmate assault.

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(Id.) Plaintiff argues that due to the false disciplinary report and his status as a southern Hispanic

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inmate, he is now in danger of assault at any moment, regardless of where he is confined. (Id.)

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As discussed in the original findings and recommendations, plaintiff’s argument that he

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has suffered other instances of retaliatory conduct by prison officials or assaults by other inmates,

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is not sufficient to demonstrate that he is now in danger of serious physical injury at a new

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institution. (See Doc. No. 26 at 2–3.) The court again notes that none of the incidents cited by

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plaintiff, including the instant allegations regarding being assaulted at High Desert State Prison,

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occurred at Pelican Bay State Prison, where he was housed at the time the complaint in this action

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was filed. Plaintiff may not rely on conclusory allegations to connect past instances of retaliatory

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conduct or assault to a claim of being in imminent danger of serious physical injury at a later

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time.

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Plaintiff has presented no legal basis for the court to reconsider its finding that plaintiff’s

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application to proceed in forma pauperis should be denied in accordance with § 1915(g), and

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therefore the motion for reconsideration is denied. However, in light of plaintiff’s pro se status,
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and to allow time for plaintiff to receive and comply with this order, the court will grant an

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extension of the deadline for payment of the required filing fee to proceed with this action.

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Accordingly:

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Plaintiff’s motion for reconsideration (Doc. No. 34) is denied;

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Within fourteen (14) days following service of this order, plaintiff shall pay the

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required $400.00 filing fee in full to proceed with this action; and
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If plaintiff fails to pay the filing fee within the specified time, this action will be
dismissed without further notice.

IT IS SO ORDERED.
Dated:

May 28, 2019
UNITED STATES DISTRICT JUDGE

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