(PC) Cruz v. Gonzalez

Filing 8

FINDINGS and RECOMMENDATION Recommending Plaintiff's #7 Application to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Stanley A. Boone on 10/11/2019. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,

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Plaintiff,

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v.

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L. GONZALEZ,

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Defendant.

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Case No. 1:19-cv-01270-DAD-SAB (PC)

FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS BE
DENIED
[ECF No. 7]

Plaintiff Guillermo Trujillo Cruz is appearing pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff filed the instant action on September 9, 2019. On October 9, 2019, Plaintiff

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filed an application to proceed in forma pauperis. (ECF No. 7.)

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I.

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DISCUSSION

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The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner

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complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to

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the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related

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screening device which precludes prisoners with three or more “strikes” from proceeding in forma

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pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g);

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Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event

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shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions,
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while incarcerated or detained in any facility, brought an action or appeal in a court of the United States

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

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relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g).

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The Court finds that Plaintiff has incurred three or more strikes under section 1915(g) prior to

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filing this lawsuit. The Court takes judicial notice of the following cases: (1) Trujillo v. Sherman, Case

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No. 1:14-cv-01401-BAM (E.D. Cal.) (dismissed on April 24, 2015 for failure to state a claim); aff’d

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Case No. 15-15952 (9th Cir. May 6, 2016); (2) Trujillo v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal.)

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(dismissed on January 6, 2016 for failure to state a claim), aff’d, Case No. 16-15101 (9th Cir. December

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15, 2017); (3) Cruz v. Gomez, Case No. 1:15-cv-00859-EPG (E.D. Cal.) (dismissed on February 3, 2017

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for failure to state a claim), aff’d, Case No. 17-15358 (9th Cir. October 25, 2017); and (4) Trujillo v.

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Gonzalez-Moran, Case No. 17-15200 (9th Cir.) (dismissed on August 21, 2017 as frivolous).

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The issue now becomes whether Plaintiff has met the imminent danger exception, which requires

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Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on

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the conditions he faced at the time he filed his complaint on September 9, 2019. Andrews, 493 F.3d at

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1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial,

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as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits-

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based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055.

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The Court further finds that Plaintiff’s complaint allegations do not meet the imminent danger

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exception. Andrews, 493 F.3d at 1053. Plaintiff has not shown that he is at risk of any serious physical

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injury. Rather, Plaintiff contends that on June 27, 2019, while housed at North Kern State Prison he

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was subjected to excessive force by officer L. Gonzalez who ordered the assault in retaliation for

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denying her sexual advances and filing grievances. Plaintiff presents absolutely no allegations that he

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faced a present threat of serious physical injury at the time he filed the complaint, as his allegations

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relate solely to the alleged excessive force that took place over two months prior to filing the complaint.

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See, e.g., Andrews, 493 F.3d at 1055-56 (plaintiff must allege to face a real, proximate and/or ongoing

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danger at the time of filing). Accordingly, Plaintiff is ineligible to proceed in forma pauperis in this

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action, and he should be required to pre-pay the $400 filing fee to proceed in this case.
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II.

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RECOMMENDATIONS

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Accordingly, it is HEREBY RECOMMENDED that:

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Plaintiff’s application to proceed in forma pauperis (ECF No. 7) be denied; and

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Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service of the

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Court’s order adopting these Findings and Recommendations.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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October 11, 2019
UNITED STATES MAGISTRATE JUDGE

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