Cruz v. Valdez

Filing 14

ORDER DECLINING TO ADOPT 9 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING 2 Plaintiff's Motion to Proceed In Forma Pauperis and ORDER DENYING AS MOOT 11 Plaintiff's Second Motion to Proceed In Forma Pauperis signed by District Judge Dale A. Drozd on 11/6/2018. (Jessen, A)

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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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No. 1:18-cv-00571-DAD-EPG

Plaintiff,
v.

ORDER DECLINING TO ADOPT FINDINGS
AND RECOMMENDATIONS AND
GRANTING PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS

B. VALDEZ,
Defendant.

(Doc. Nos. 2, 9, 11)

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

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action brought pursuant to 42 U.S.C. § 1983. On April 27, 2018, plaintiff commenced this action

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by filing a complaint (Doc. No. 1) and an application to proceed in forma pauperis (Doc. No. 2).

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The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

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and Local Rule 302.

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On August 13, 2018, the assigned magistrate judge issued findings and recommendations,

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recommending that plaintiff’s application to proceed in forma pauperis be denied, and that

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plaintiff be required to pay the $400 filing fee. (Doc. No. 9). The findings and recommendations

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were served on plaintiff and contained notice that any objections thereto were to be filed within

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twenty-one days after service. (Id. at 4.) On August 27, 2018, plaintiff filed his objections to the

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findings and recommendations. (Doc. No. 10). On September 6, 2018, plaintiff filed a second
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application to proceed in forma pauperis. (Doc. No. 11).

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the undersigned declines to

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adopt the findings and recommendations. The findings and recommendations cited four separate

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cases filed by plaintiff that, in the assigned magistrate judge’s view, counted as strikes under 28

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U.S.C. § 1915(g). Each is addressed in turn.

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First, the findings and recommendations cited to the dismissal in Trujillo v. Sherman,

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1:14-cv-01401-BAM (E.D. Cal. Apr. 24, 2015). A review of that case demonstrates that the

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action was dismissed for failure to state a claim upon which relief could be granted. That case

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accordingly counts as a strike dismissal against plaintiff under 28 U.S.C. § 1915(g).
Second, the findings and recommendations cited to the dismissal in Trujillo v. Ruiz, 1:14-

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cv-00975-SAB (E.D. Cal. Jan 6, 2016). That case also was dismissed for failure to state a claim

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upon which relief could be granted. That case also counts as a dismissal strike against plaintiff.

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Third, the findings and recommendations cited to Trujillo v. Munoz, 1:14-cv-00976-DLB

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(E.D. Cal. May 11, 2016). That case was previously dismissed for failure to state a claim.

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However, on February 27, 2018, the Ninth Circuit Court of Appeals vacated that judgment and

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remanded the case to the district court in light of the decision in Williams v. King, 875 F.3d 500

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(9th Cir. 2017). Following remand, the newly-assigned magistrate judge issued findings and

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recommendations, recommending that the action proceed on plaintiff’s claim alleging

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unreasonable searches in violation of the Fourth Amendment. On May 23, 2018, United States

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District Judge Lawrence J. O’Neill adopted those findings and recommendations in full. Because

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this action was not dismissed and is currently proceeding on the claim found by the court to be

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cognizable, the court concludes that this case cannot serve as the basis of a strike for purposes of

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28 U.S.C. § 1915(g).

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Finally, the findings and recommendations cited to Trujillo v. Munoz, 1:14-cv-01215-SAB

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(E.D. Cal. May 17, 2016). That case was previously dismissed for failure to state a claim, but

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that ruling was also subsequently vacated and remanded by the Ninth Circuit in light of the

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decision in Williams. On remand, and following the filing of an amended complaint by plaintiff,
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the assigned magistrate judge issued findings and recommendations, recommending that the case

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be permitted to proceed on plaintiff’s claim for cruel and unusual punishment under the Eighth

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Amendment, as well as on his claim of retaliation in violation of the First Amendment. Those

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findings and recommendations are currently pending before United States District Judge Anthony

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W. Ishii. Because this action has not been dismissed but remains pending before the court, it also

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cannot constitute a strike dismissal for purposes of 28 U.S.C. § 1915(g). Thus, only two of the

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cases identified in the findings and recommendations are appropriately categorized as strikes.

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Accordingly,

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1.

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The court declines to adopt the findings and recommendations issued on August
13, 2018 (Doc. No. 9);

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Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted;

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Plaintiff’s second motion to proceed in forma pauperis (Doc. No. 11) is denied as

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having been rendered moot by this order; and
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This action is referred back to the assigned magistrate judge for further
proceedings consistent with this order.

IT IS SO ORDERED.
Dated:

November 6, 2018
UNITED STATES DISTRICT JUDGE

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