Cruz v. Leyva

Filing 9

ORDER to SHOW CAUSE Why Plaintiff's Application to Proceed In Forma Pauperis should not be denied 5 , signed by Magistrate Judge Sheila K. Oberto on 12/19/17. Show Cause Response due 21-Day Deadline. (Martin-Gill, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

GUILLERMO TRUJILLO CRUZ,

10
11
12

Plaintiff,
v.
R. LEYVA,

13

Case No. 1:17-cv-01549-DAD-SKO (PC)
ORDER TO SHOW CAUSE WHY PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS SHOULD NOT BE DENIED
(Doc. 5)

Defendant.

TWENTY-ONE (21) DAY DEADLINE

14
15
16

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

17

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

18

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

19

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

20

(Doc. 3.)

21
22
23
24
25
26
27

On December 4, 2017, Plaintiff filed an application to proceed in forma pauperis, which is
currently before the Court. (Doc. 5.) It appears that Plaintiff’s application to proceed in forma
pauperis should be denied under 28 U.S.C. § 1915(g).
“In no event shall a prisoner bring a civil action . . . under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under

28
1

1

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

2
3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

November 20, 2017.

11

Accordingly, the only way Plaintiff may proceed in forma pauperis in this action is if his

12

allegations demonstrate he was under imminent danger of serious physical injury at the time this

13

action was filed. Plaintiff alleges that the violation in this action occurred at High Desert State

14

Prison (“HDSP”), and that Correctional Officer R. Leyva is employed at Kern Valley State Prison

15

(“KVSP”). However, when Plaintiff filed this action, he was housed at Pelican Bay State Prison

16

(“PBSP”) in Crescent City, California. (See Doc. 1, p. 1.) The Complaint contains allegations

17

regarding acts by Officer Leyva that occurred either at HDSP or KVSP. Plaintiff does not state

18

any allegations of wrongdoing at PBSP and was not in imminent danger of serious physical injury

19

at the time he filed suit, which precludes him from proceeding in forma pauperis in this action.

20

Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).
Plaintiff had three strikes under 28 U.S.C. §1915(g) before he filed this action. The

21
22
23
24
25

allegations in this action do not establish that Plaintiff was facing imminent danger of serious
physical injury at the time the Complaint was filed when he was housed at PBSP.
///
///

26
27
28

1

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.

2

1

Accordingly, it is HEREBY ORDERED that, within twenty-one days of the date of

2

service of this order, Plaintiff SHALL show cause why his application to proceed in forma

3

pauperis status should not be denied. Alternatively, Plaintiff may file a notice of voluntary

4

dismissal.

5
6
7
8

IT IS SO ORDERED.
Dated:

December 19, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

.