Cruz v. Valdez

Filing 34

ORDER DENYING AS MOOT 32 Plaintiff's Motion to Proceed IFP and ORDER DENYING 33 Plaintiff's Motion to Correct and Properly File the Three-Strike Provision signed by Magistrate Judge Erica P. Grosjean on 5/15/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,
Plaintiff,

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v.
B. VALDEZ,
Defendants.

Case No. 1:18-cv-00571-DAD-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS AND
DENYING PLAINTIFF’S MOTION TO
CORRECT AND PROPERLY FILE THE
THREE STRIKE PROVISION
(ECF Nos. 32, 33)

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Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se with this civil rights
action brought pursuant to 42 U.S.C. § 1983. On April 27, 2018, Plaintiff commenced this action by
filing a complaint (ECF No. 1) and an application to proceed in forma pauperis (ECF No. 2.) The
Court originally granted Plaintiff’s application to proceed in forma pauperis. (ECF No. 16.)
Defendant then filed a motion to revoke Plaintiff’s in forma pauperis status, arguing that
Plaintiff had more than three dismissals qualifying as “strikes” under 28 U.S.C. § 1915(g) and could
not otherwise meet the imminent risk of harm exception to the three strikes rule. (ECF No. 22.) On
February 4, 2019, the Court issued Findings and Recommendations agreeing with Defendants and
recommending that the Court vacate the Order granting Plaintiff in forma pauperis status. (ECF No.
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24.) The Findings and Recommendations are currently pending before the District Judge.

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The Court gave the parties twenty-one days to file objections to the Findings and

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Recommendations. On February 25, 2019—the due date for written objections—Plaintiff filed a

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motion for an extension of time to file written objections to the Findings and Recommendations. (ECF

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No. 26.) Plaintiff did not explain why an extension was necessary; nor did the Court otherwise find

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good cause for the extension. Accordingly, the Court denied Plaintiff’s motion. (ECF No. 27.)

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Nevertheless, Plaintiff filed a “Motion for Objections,” on March 1, 2019, which appear to be

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objections to the February 4, 2019, Findings and Recommendations.

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On April 5, 2019, Plaintiff filed another application to proceed in forma pauperis, as well as a

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“Motion to Correct and Properly File the Three Strikes Provision.” (ECF Nos. 32, 32). These motions

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are now before the Court.

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First, the Court will DENY Plaintiff’s April 5, 2019 application to proceed in forma pauperis

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as MOOT. The Court already granted Plaintiff’s in forma pauperis application. See (ECF No. 16.)

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While it is true that undersigned recently issued Findings and Recommendations recommending that

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Plaintiff’s in forma pauperis status be revoked, the District Judge has not ruled on that

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recommendation. As it currently stands, Plaintiff is proceeding in forma pauperis; his application to

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proceed in forma pauperis is unnecessary and is accordingly denied.

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As to Plaintiff’s “Motion to Correct and Properly File the Three Strikes Provision,” although

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unclear, it appears that the document is actually a response to Defendant’s reply to Plaintiff’s “Motion

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for Objections.” Plaintiff, as he did in his belated “Motion for Objections,” argues that the imminent

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risk of harm exception to the three strikes rule should apply despite undersigned’s finding that the

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exception is inapplicable here because the harm Plaintiff allegedly faced occurred years before he

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filed his suit. (ECF No. 24 at p. 3-4.)1

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The Court will construe Plaintiff’s “Motion to Correct and Properly File the Three Strikes

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Provision,” as a motion to file a sur-reply to Defendant’s response to Plaintiff’s tardy and

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unauthorized objections to the Findings and Recommendations, and the Court will DENY the Motion.

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Again, the availability of the exception “turns on the conditions a prisoner faced at the time
the complaint was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053
(9th Cir. 2009).

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Plaintiff fails to show good cause why he should be enabled to file a sur-reply—especially when

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Plaintiff did not timely file objections to the Findings and Recommendations to begin with.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s April 5, 2019 Motion to Proceed In Forma Pauperis is DENIED AS MOOT.

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2. Plaintiff’s April 5, 2019 Motion to Correct and Properly File the Three Strike Provision is
DENIED.

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IT IS SO ORDERED.
Dated:

May 15, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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