Cruz v. Leyva

Filing 13

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Requests to Proceed IFP, signed by Magistrate Judge Sheila K. Oberto on 1/17/18. Objections to F&R 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.
R. LEYVA,

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Case No. 1:17-cv-01549-DAD-SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S REQUESTS TO PROCEED
IN FORMA PAUPERIS
(Docs. 5, 10)

Defendant.

TWENTY-ONE (21) DAY DEADLINE

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A.

BACKGROUND

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

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint in this action on November 20,

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2017. (Doc. 1.) On November 21, 2017, Plaintiff was ordered to either file an application to

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proceed in forma pauperis, or pay the filing fee since he submitted neither with the Complaint.

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(Doc. 3.)
On December 4, 2017, Plaintiff filed an application to proceed in forma pauperis, which is

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currently before the Court. (Doc. 5.) On December 19, 2017, an order issued for Plaintiff to

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show cause (“OSC”) why his application to proceed in forma pauperis under 28 U.S.C. § 1915(g)

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should not be denied as he had three strikes prior to filing this suit and failed to show imminent

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danger since he was no longer housed at the facility where the alleged actions took place when he

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filed this action. (Doc. 9.) Plaintiff responded by filing another application to proceed in forma

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pauperis (Doc. 10) and a response to the OSC (Doc. 12).

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B.

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28 U.S.C. § 1915 governs proceedings in forma pauperis. “In no event shall a prisoner

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

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

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

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

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which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g).

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C.

DISCUSSION

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The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

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873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of Trujillo1 v. Sherman, 1:14-cv-0140-

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BAM (PC), which was dismissed and closed on April 24, 2015, for failure to state a claim,

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affirmed by the Ninth Circuit on February 23, 2016; Trujillo v. Ruiz, et al., 1:14-cv-0975-SAB,

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which was dismissed and closed on January 6, 2016, for failure to state a claim, affirmed by the

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Ninth Circuit on May 9, 2017; and Trujillo v. Gonzalez-Moran, et al., which was dismissed and

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closed on January 19, 2017 (Plaintiff’s appeal was dismissed by the Ninth Circuit as frivolous on

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July 28, 2017). Consequently, Plaintiff had three strikes under §1915(g) before he filed this

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action on November 20, 2017. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded

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from proceeding in forma pauperis in this action unless at the time the Complaint was filed, he

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was under imminent danger of serious physical injury.
The Court has reviewed Plaintiff’s Complaint and finds that he does not meet the

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imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
Plaintiff alleges that the violation in this action occurred at High Desert State Prison (“HDSP”),
and that Correctional Officer R. Leyva is employed at Kern Valley State Prison (“KVSP”).
However, when Plaintiff filed this action, he was housed at Pelican Bay State Prison (“PBSP”) in
Crescent City, California. (See Doc. 1, p. 1.) The Complaint contains allegations regarding acts

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Plaintiff intermittently transposes his surnames in his legal filings— i.e., “Trujillo Cruz” and “Cruz Trujillo.”
However, Plaintiff’s identity in these prior actions was confirmed via his California Department of Corrections and
Rehabilitation inmate number #AA-2974.

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by Officer Leyva that occurred either at HDSP or KVSP. Plaintiff does not state any allegations

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of wrongdoing at PBSP and was not in imminent danger of serious physical injury at the time he

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filed suit, which precludes him from proceeding in forma pauperis in this action. Andrews v.

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Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).

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In his response to the OSC, Plaintiff indicates that, on July 20, 2017, while confined at

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KVSP, he was targeted for assault. (Doc. 12, p. 2.) However, an incident that occurred four

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months before an action is filed does not meet the imminent danger exception—particularly

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where the inmate is no longer at the facility where the alleged assault occurred. Plaintiff argues

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that “it only takes a touch of a button such as via telephonically (sic) call to have an order of an

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assault done (sic).” (Id.) However, Plaintiff cites no legal support for such argument to satisfy

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the imminent danger exception of 28 U.S.C. §11915(g), and the Court finds none.

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In sum, Plaintiff had three strikes under 28 U.S.C. §1915(g) before he filed this action.

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The allegations in this action do not establish that Plaintiff was facing imminent danger of serious

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physical injury at the time the Complaint was filed—when he was housed at PBSP. Plaintiff

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therefore fails to allege specific facts indicating he was under imminent danger at the time he

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filed the Complaint. Based on the foregoing, the Court finds that Plaintiff fails to allege an

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imminent danger of serious physical injury necessary to bypass § 1915(g)’s restriction on filing

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suit without prepayment of the filing fee. Accordingly, Plaintiff may not proceed in forma

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pauperis in this action and his applications should be denied.

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D.

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Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motions to

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CONCLUSION and RECOMMENDATION

proceed in forma pauperis, filed December 4, 2017, (Doc. 5), and December 22, 2017, (Doc. 10),
be denied and that this action be dismissed without prejudice to Plaintiff refiling with prepayment
of the full filing fee.
These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff
may file written objections with the Court. The document should be captioned “Objections to
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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, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

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Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 17, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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