Cruz v. Valdez

Filing 51

ORDER ADOPTING 39 FINDINGS and RECOMMENDATIONS ;Plaintiffs claims against defendant are dismissed without prejudice due to plaintiffs failure to pay the filing fee as required and for failure to follow court orders. signed by District Judge Dale A. Drozd on 1/16/2020. CASE CLOSED(Martin-Gill, S)

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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 AND DISMISSING
CASE

B VALDEZ,
Defendant.

(Doc. No. 39)

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 4, 2019, the court adopted findings and recommendations issued by the

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assigned magistrate recommending that defendant’s motion for an order revoking plaintiff’s in

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forma pauperis status be granted. (Doc. No. 37.) The assigned magistrate judge found that

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plaintiff is subject to the three-strikes bar pursuant to 28 U.S.C. § 1915(g) and had not met his

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burden of establishing that he qualified for the imminent danger exception to that provision. (Id.)

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The court also vacated its prior order granting plaintiff’s application to proceed in forma pauperis

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and ordered that, within forty-five days of service of the order adopting the findings and

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recommendations, plaintiff shall pay the $400.00
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filing fee to proceed with this action. (Id.) The court specifically warned that plaintiff’s action

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would be dismissed if he failed to pay the filing fee within the specified time. (Id.)

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Plaintiff has, to date, failed to pay the filing fee. On October 31, 2019, the assigned

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magistrate judge issued findings and recommendations recommending that “(1) Plaintiff’s claims

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against Defendant be dismissed without prejudice for failure to pay the filing fee and for failure to

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obey Court orders; and (2) the Clerk of Court be instructed to close this case.” (Doc. No. 39 at 2.)

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Plaintiff was given twenty-one (21) days to file objections to the findings and recommendations.

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On November 18, 2019, plaintiff inexplicably and without explanation filed both his objections to

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the findings and recommendations (Doc. No. 42), and a motion for an extension of time to file

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objections to the findings and recommendations. (Doc. No. 41). The assigned magistrate judge

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denied the motion for an extension of time as unnecessary. (Doc. No. 43.)

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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.

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Plaintiff objects to the motion ordering the court to revoke his in forma pauperis status

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because he asserts that he informed defendant and other prison officials that he was in imminent

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danger of serious physical injury due to verbal threats of assault, battery and stabbing two days

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before he appeared before a committee regarding his transfer to another institution. (Doc. No. 42

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at 1–2.) The court notes that the time to object to the findings and recommendations

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recommending granting the motion to revoke his in forma pauperis status passed on February 25,

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2019. (Doc. No. 24.) Moreover, the undersigned has already granted that motion. (Doc. No. 37.)

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Plaintiff also states in his pending objections that he cannot pay the court’s filing fees due to his

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indigency status for the past six years. (Id. at 2.) However, indigency is not an exception to the

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three-strike bar. See 28 U.S.C. § 1915(g).

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Accordingly:

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1. The October 31, 2019 findings and recommendations (Doc. No. 39) are adopted in

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full;
2. Plaintiff’s claims against defendant are dismissed without prejudice due to

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plaintiff’s failure to pay the filing fee as required and for failure to follow court

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orders; and

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3. The Clerk of the Court is instructed to close this case.
IT IS SO ORDERED.
Dated:

January 16, 2020
UNITED STATES DISTRICT JUDGE

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