Cruz v. Gonzalez

Filing 39

FINDINGS and RECOMMENDATIONS that Plaintiff's In Forma Pauperis Status be Revoked and that Plaintiff be Required to Pay Filing Fee in Full signed by Magistrate Judge Jeremy D. Peterson on 7/16/2019. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (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,

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Plaintiff,

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v.

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M. GONZALEZ,

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Case No. 1:17-cv-01548-DAD-JDP
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S IN FORMA PAUPERIS
STATUS BE REVOKED AND THAT
PLAINTIFF BE REQUIRED TO PAY FILING
FEE IN FULL

Defendant.

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. On March 14, 2019, we granted plaintiff’s motion to proceed in forma

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pauperis. ECF No. 36. Upon further review, it appears that plaintiff is not entitled to proceed in

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forma pauperis under 28 U.S.C. § 1915.

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The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil

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action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or

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

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

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may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or

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for failing to state a claim upon which relief maybe granted.1

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Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v.

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Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). In his complaint, plaintiff alleges that a

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correctional officer sexually harassed him and, when he declined her advances, threatened him.

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ECF No. 1 at 3-5. Plaintiff does not, however, allege that he is currently at risk of physical harm.

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Accordingly, plaintiff’s in forma pauperis status should be revoked and he should pay the

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filing fee in full because he has accrued three or more strikes and was not under imminent danger

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of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g).

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Findings and Recommendation

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Based on the foregoing, it is hereby recommended that:

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1. plaintiff’s in forma pauperis status be revoked;

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2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption

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of these findings and recommendations; and

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3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of

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these findings and recommendations, all pending motions be terminated and this action

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be dismissed without prejudice.

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The undersigned submits the findings and recommendations to a district judge under 28

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U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District

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Court, Eastern District of California. Within fourteen days of the service of the findings and

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recommendations, plaintiff may file written objections to the findings and recommendations with

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the court. That document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The district judge will review the findings and recommendations under 28

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U.S.C. § 636(b)(1)(C). Plaintiff’s failure to file objections within the specified time may result in

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the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

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The cases include Trujillo v. Gonzalez-Moran, Case No. 17-15200 (9th Cir. Aug. 21, 2017);
Cruz v. Gomez, No. 1:15-cv-00859-EPG (E.D. Cal.), aff’d, No. 17-15358 (9th Cir. Oct. 25, 2017);
Trujillo v. Sherman, No. 1:14-cv-01401-BAM (E.D. Cal.), aff’d, No. 15-15952 (9th Cir. May 6,
2016); Trujillo v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal.), aff’d, No. 16-15101 (9th Cir. Dec.
15, 2017).
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IT IS SO ORDERED.

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Dated:
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July 16, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 203

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