Cruz v. Valdez
Filing
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ORDER ADOPTING 24 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER GRANTING 22 Defendant's Motion for an Order Revoking Plaintiff's In Forma Pauperis Status; ORDER REVOKING Plaintiff's In Forma Pauperis Status; and ORDER Directing Plaintiff to Pay the $400.00 Filing Fee in Full Within Forty-Five (45) Days signed by District Judge Dale A. Drozd on 9/3/2019. (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 (PC)
Plaintiff,
v.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
B. VALDEZ,
(Doc. No. 24)
Defendant.
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Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was
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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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The undersigned previously declined to adopt the assigned magistrate judge’s August 13,
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2018 findings and recommendations recommending that plaintiff’s application to proceed in
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forma pauperis be denied. (See Doc. No. 14.) The undersigned concluded that the dismissals in
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two of the four cases relied upon in the August 13, 2018 findings and recommendations as strike
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dismissals did not properly qualify as strikes under 28 U.S.C. § 1915(g). (See id. at 2–3.) The
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court therefore granted plaintiff’s motion to proceed in forma pauperis. (Id. at 3.) Thereafter, the
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magistrate judge screened plaintiff’s complaint and found cognizable claims for conspiracy,
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retaliation, and cruel and unusual punishment. (See Doc. No. 17.)
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On February 4, 2019, after defendant pointed the court to additional actions and appeals
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filed by plaintiff that were eventually dismissed for failure to state a claim or as frivolous, the
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magistrate judge issued the pending findings and recommendations, recommending that
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defendant’s motion for an order revoking plaintiff’s in forma pauperis status (Doc. No. 22) be
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granted, finding that plaintiff is subject to the three-strikes bar under 28 U.S.C. § 1915(g) and has
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not met the imminent danger exception to that provision. (Doc. No. 24 at 3–5.) The findings and
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recommendations were served on plaintiff and contained notice that any objections thereto were
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to be filed within twenty-one (21) days after service. (Id.) On March 1 and April 5, 2019,
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plaintiff filed untimely objections. (Doc. Nos. 28, 30, 33.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Rule
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304, the undersigned has conducted a de novo review of this case. Having carefully reviewed the
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entire file, including plaintiff’s objections, the court finds the findings and recommendations to be
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supported by the record and proper analysis.
Plaintiff’s objections fail to address the magistrate judge’s conclusion that he is subject to
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the three strikes bar under 28 U.S.C. § 1915(g) since he has filed at least four prior actions that
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have been dismissed for failure to state a claim or as frivolous.1 The court finds no legal basis
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upon which to question the magistrate judge’s findings and recommendations in that regard.
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Furthermore, as the magistrate judge properly concluded, the allegations set forth in plaintiff’s
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complaint are insufficient to trigger the “imminent danger of serious physical injury” exception to
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dismissal under § 1915(g). To the extent plaintiff has attempted in his objections to raise new
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issues and claims based upon events that occurred either before or after this action was initiated,
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those claims are not relevant to the court’s finding that he has failed to establish he was in
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imminent danger at the time the complaint in this action was filed.
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See Trujillo v. Sherman, No. 1:14-cv-01401 (E.D. Cal. Apr. 24, 2015) (dismissing plaintiff’s
complaint for failure to state a claim); Trujillo v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal. Jan. 6,
2016) (dismissing plaintiff’s complaint for failure to state a claim); Trujillo v. Gomez, No. 1:15cv-00859-EPG (E.D. Cal. Feb. 3, 2017) (dismissing plaintiff’s complaint with prejudice for
failure to state a claim); Trujillo v. Gonzalez-Moran, No. 17-15200 (9th Cir. July 28, 2017
(dismissing plaintiff’s appeal as frivolous and denying his motions to proceed IFP).
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Accordingly,
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full;
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The February 4, 2019 findings and recommendations (Doc. No. 24) are adopted in
Defendant’s motion for an order revoking plaintiff’s in forma pauperis status
(Doc. No. 22) is granted;
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The November 7, 2019 order granting plaintiff’s application to proceed in forma
pauperis (Doc. No. 16) is vacated;
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4.
Plaintiff’s in forma pauperis status is revoked;
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5.
Within forty-five (45) days following service of this order, plaintiff shall pay the
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$400.00 filing fee in full to proceed with this action. If plaintiff fails to pay the
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filing fee within the specified time, this action will be dismissed; and
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This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:
September 3, 2019
UNITED STATES DISTRICT JUDGE
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