(PC) Cruz v. Savoie

Filing 9

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 6 Motion to Proceed In Forma Pauperis Under 28 U.S.C. § 1915 (g); ORDER to Assign a District Judge signed by Magistrate Judge Helena M. Barch-Kuchta on 7/28/2022. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen Days. (Sant Agata, 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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Plaintiff,

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v.

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Case No. 1:21-cv-01350-HBK (PC)
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS UNDER 28
U.S.C. § 1915 (g)

S. SAVOIE,
(Doc. No. 6)

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Defendant.
FOURTEEN-DAY OBJECTION PERIOD

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ORDER TO ASSIGN A DISTRICT JUDGE

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Plaintiff Guillermo Trujillo Cruz, a prisoner incarcerated at Pelican Bay State Prison,

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initiated this action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on

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September 9, 2021. (Doc. No. 1, “Complaint”). 1 Plaintiff seeks to proceed in this action in

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forma pauperis. (Doc. No. 6, IFP). For the reasons discussed below, the undersigned

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recommends the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 1915(g) because

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Plaintiff has had at least three actions or appeals that constitute strikes, and the Complaint does

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The Court takes judicial notice that Plaintiff filed another civil rights action against the same defendants
setting forth virtually similar facts in Cruz v. Savoie, Case No. 1:21-cv-01552-DAD-GSA (E.D. Cal. Oct.
21, 2021). The district court adopted the findings and recommendations finding Plaintiff three strike status
barred the action and the allegations in the complaint failed to meet the imminent danger exception. (See
findings and recommendation dated October 25, 2021 (Doc. No. 5) and order dated November 22, 2021
adopting findings and recommendation). Thus, this case appears duplicative of the previously filed and
dismissed action.

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not establish that Plaintiff meets the imminent danger exception.

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BACKGROUND AND FACTS

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The Complaint identifies one defendant in the case caption: Officer S. Savoie, who

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Plaintiff states is a correctional officer at North Kern, in her individual and official capacities.

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(Doc. No. 1 at 1). The incident giving rise to the cause of action occurred while Plaintiff was

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incarcerated at North Kern State. (Id.). Plaintiff alleges Defendant Savoie fabricated a Rules

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Violation Report (RVR), Log No. 20006, dated April 27, 2016, against Plaintiff. (Id. at 2-6).

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Although not identified as a defendant on the caption of the Complaint, Plaintiff also alleges that

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correctional officer Ostrander found Plaintiff guilty of the RVR on April 27, 2016 and

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Ostrander’s finding of Plaintiff’s guilt in the RVR while knowing it was false/fabricated violated

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his due process clause under the Fourteenth Amendment. (Id.).

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Plaintiff acknowledging he has had three or more cases dismissed that qualify as strikes

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under § 1915(g), contends he is at risk of imminent danger. (Id. at 2). Plaintiff states he has

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encountered “verbal threats” of “physical injury to his health and safety” at “numerous

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institutions.” (Id.). Plaintiff further identifies incidents of “past attacks” from other inmates on

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November 1, 2013, August 11, 2016 at High Desert State Prison, and on November 14, 2020 at

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Kern Valley State Prison. (Id.). Plaintiff claims these various attacks were caused, at least in

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part, due to the false allegations in the RVR. (Id. at 1, 4, 5). Addressing what he qualifies as a

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“present threat,” Plaintiff states he received a report from Sergeant R. Olivarez on April 1, 2021

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that contained “safety concerns” that he “may be targeted for assault by members/or associates of

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the Mexican Mafia Security Threat Group-1.” (Id. at 2). Plaintiff believes these “verbal threats”

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from prison officials show correctional staff is “using anonymous resources to do their ‘dirty

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work’ and intentionally set [him] up to be targeted to cover up their illegal misconduct.” (Id. at 2-

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3). As relief, Plaintiff seeks declaratory relief and monetary damages in the amount of $80,000.

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(Id. at 7-8).

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APPLICABLE THREE STRIKE LAW
The “Three Strikes Rule” states:
In no event shall a prisoner bring a civil action or proceeding under
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this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal
in the United States that was dismissed on grounds that it was
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
physical injury.

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28 U.S.C. § 1915(g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was
enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought
unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment
plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious,
or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir.
2007).
For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning
the order dismissing the case must have been docketed before plaintiff initiated the current case.
See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan,
738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the
action was for frivolity, maliciousness, or for failure to state a claim, or an appeal was dismissed
for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v.
Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count
as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts
as a strike during the pendency of the appeal). It is immaterial whether the dismissal for failure to
state a claim to count was with or without prejudice, as both count as a strike under § 1915(g).
Lomax, 140 S. Ct. at 1727. When a district court disposes of an in forma pauperis complaint
requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis
Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without
paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner
“faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint.
Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger

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exception for the first time in the Ninth Circuit). The court must construe the prisoner’s “facial

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allegations” liberally to determine whether the allegations of physical injury are plausible.

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Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015).

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In order to avail oneself of this narrow exception, “the PLRA requires a nexus between

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the alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray

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v. Lara, No. 19-17093, ___ F. 4th ___, 2022 WL 1073607, at *6 (9th Cir. Apr. 11, 2022)

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(adopting nexus test). “In deciding whether such a nexus exists, we will consider (1) whether the

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imminent danger of serious physical injury that a three-strikes litigant alleges is fairly

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traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial

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outcome would redress that injury.” Id. at *7 (adopting test as articulated by Second Circuit,

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citation omitted). The three-strikes litigant must meet both requirements of the nexus test to

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proceed. Id.

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Assertions of imminent danger may be rejected as overly speculative, fanciful, or

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“conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11. Similarly, “vague and utterly

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conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226,

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1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine

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emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v.

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Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a

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plaintiff at some earlier times are immaterial, as are any subsequent conditions. Andrews, 493

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F.3d at 1053; Blackman v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1

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(E.D. Cal. Oct. 4, 2016).

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Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. §

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1915(g), some courts have found that the proper procedure is to dismiss the case without

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prejudice to re-filing the action upon pre-payment of fees at the time the action is refiled.

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Hardney v. Hampton, No. 2:20-cv-01587-WBS-DMC-P, 2021 WL 4896034, at *4 (E.D. Cal.

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Oct. 20, 2021), report and recommendation adopted, No. 2:20-cv-01587-WBS-DMC-P, 2021

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WL 6051701 (E.D. Cal. Dec. 21, 2021) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.

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2002); Campbell v. Vance, No. CIV S-05-1163 RRB, 2005 WL 3288400, at *1 (E.D. Cal. Nov.
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30, 2005). Other courts have first afforded the plaintiff an opportunity to pay the filing fee

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before dismissing the case. See Gorby v. Internal Revenue Service, Fresno, Case No. 1:21-cv-

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320-NONE-HBK, 2021 WL 1339146, report and recommendation adopted in part and rejected

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in part, 2021 WL 2227810 (E.D. Cal. June 2, 2021)(rejected immediate dismissal, instead

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permitting 30 days to pay filing fee, and if not, then requiring dismissal); Trujillo Cruz v. White,

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No. 2:19-cv-1304-KJM-DMC, 2019 WL 4917192 (Oct. 4, 2019), report and recommendation

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adopted in part and rejected in part, Trujillo-Cruz v. White, 2020 WL 1234201 (E.D. Cal. March

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13, 2021)(rejected immediate dismissal, instead permitting 30 days to pay filing fee, and if not

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then requiring dismissal).

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The preceding law must be taken in the context of congressional intent when enacting the

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Prison Litigation Reform Act. As the United States Supreme Court noted in Lomax, “[t]he point

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of the PLRA . . . was to cabin not only abusive but also simply meritless prisoner suits.” Lomax,

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140 S.Ct. at 1726. And the three strikes provision, in particular, was aimed “to disincentivize

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frivolous prisoner litigation.” Hoffman v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019).

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ANALYSIS

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A. Plaintiff has three or more qualifying strikes

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A review of the Pacer Database reveals Plaintiff has filed at least 65 civil actions or

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appeals in a court of the United States. As noted above, Plaintiff acknowledges his three-strike

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status. (See also Doc. No. 1 at 2) (stating “I Guillermo Trujillo Cruz (Plaintiff) have accumulated

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three strikes under the Prison Litigation Reform Act (PLRA)”). Nonetheless, the Court identifies

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the following cases, although not exhaustive, which are properly deemed qualifying § 1915(g)

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strikes, entered before Plaintiff commenced the instant action:

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Date of Order

Case Style
Trujillo v. Sherman, Case
No. 1:14-cv-01401-BAM
(PC), aff’d, Trujillo v.
Sherman, 632 F. App’x 426
(9th Cir. 2016).
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April 24, 2015

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Disposition
Order dismissing second
amended complaint for failure
to state a claim.

Plaintiff Guillermo Trujillo Cruz filed this action as Guillermo C. Trujillo.

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June 6, 2016

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Cruz v. Ruiz, Case No. 1:14- Order dismissing second
cv-00975-SAB-PC, 2016
amended complaint for failure
WL 8999460 (E.D. Cal.,
to state a claim.
Jan. 6, 2016), aff’d sub nom,
Trujillo v. Ruiz, 688 F.
App’x 435 (9th Cir. 2017).
Cruz v. Gomez, Case No.
1:15-cv-00859-EPG (PC),
2017 WL 1355872 (E.D.
Cal., Feb. 3, 2017), aff’d
sub nom, Trujillo v. Gomez,
698 F. App’x 368 (9th Cir.
2017).

Order dismissing second
amended complaint for failure
to state a claim.

Cruz v. Maldonado, Case
September 18, 2019 No. 1:18-cv-0696-LJO-JLT
(PC), 2019 WL 3458658
(E.D. Cal. July 31, 2019)

Order adopting Findings and
Recommendations dismissing
first amended complaint for
failure to state a claim.

January 23, 2017

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The Court also takes judicial notice of the United States Court of Appeals case: Trujillo v.

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

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frivolous). Plaintiff’s three strike status has also been recognized in other actions filed against

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Defendant Savoie on virtually identical facts. See Order dated March 26, 2019 adopting report

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and recommendation and revoking Plaintiff’s in forma pauperis status, and Order dated May 28,

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2019 denying Plaintiff’s motion for reconsideration regarding revocation of in forma pauperis

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status in case no. 1:17-cv-1474-DAD-BAM (Doc. Nos/ 26, 33, 35); and order dated June 23,

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2022 adopting report and recommendation denying Plaintiff in forma pauperis status in case no.

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1:20-cv-1720-JLT-GSA (Doc. Nos. 17, 28). Thus, it is indisputable that Plaintiff has had three or

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more qualifying strikes for purposes of § 1915(g).

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B. The Imminent Danger Exception Does Not Apply

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Because Plaintiff has three-qualifying strikes, he may not proceed IFP unless the

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Complaint contains plausible allegations that Plaintiff is in imminent danger of serious physical

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injury as of the date the complaint is filed. Liberally construing the Complaint, the allegations

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asserted fail to meet § 1915(g)’s exception for imminent danger at the time Plaintiff filed this

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action on September 9, 2021.

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Plaintiff, as he has done in numerous other cases, including case number 1:20-cv-1720-

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JLT-GSA, seeks to attribute the “past attacks” from other inmates on November 1, 2013, August

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11, 2016 at High Desert State Prison, and on November 14, 2020 at Kern Valley State Prison to

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the allegedly false RVR written by Defendant Savoie in 2016. The law requires that there must

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be a nexus between the imminent danger that Plaintiff alleges and the claims he asserts in the

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instant complaint. Plaintiff’s argument that the past assaults could happen again, without more,

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simply does not show imminent danger under § 1915(g). It is mere conjecture that his prior

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attacks are related to an April 2016 alleged false RVR.
In an attempt to identify a “present threat,” Plaintiff states he received a second false RVR

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report from Sergeant R. Olivarez on April 1, 2021 that contained “safety concerns” that he “may

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be targeted for assault by members/or associates of the Mexican Mafia Security Threat Group-1.”

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(Doc. No. 1 at 2). Plaintiff believes these “verbal threats” from prison officials show correctional

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staff is “using anonymous resources to do their ‘dirty work’ and intentionally set [him] up to be

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targeted to cover up their illegal misconduct.” (Id. at 2-3). Significant, however, is that Plaintiff

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denies that he has any safety concerns in the exhibits he attaches to his Complaint. In response to

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being advised of “the possible threat” Plaintiff “adamantly denied having any safety and/or

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enemy concerns by stating, ‘I don’t have any safety concerns. I can go to any mainline’ and

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requested to remain housed on General Population (GP) facility.” (Doc. No. 1 at 14). Indeed,

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Plaintiff signed the form and under the “comments” section immediately before his signature

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wrote, “I have no safety concerns here at (KVSP) and will like to continue general population.”

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(Id.).

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The availability of the imminent danger exception “turns on the conditions a prisoner

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faced at the time the complaint was filed, not at some earlier or later time.” Andrews, 493 F.3d at

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1056; Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); see also Turner v. Allison, No. 18-

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cv-02061-YGR (PR), 2019 WL 1230437, at *2 (N.D. Cal. Mar. 15, 2019) (“None of these alleged
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incidents of excessive force occurred at the prison[ ] where Plaintiff was incarcerated at the time

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he filed his complaint”); Cruz v. Baker, No. 1:18-CV-01641-LJO-SAB PC, 2018 WL 11241283,

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at *1 (E.D. Cal. Dec. 13, 2018) (finding past incidents of alleged excessive force by guard

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allegedly employed at former prison “do not meet the imminent physical danger exception under

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section 1915(g)”); Bontemps v. Smith, No. CV 15-8226-JFW (SP), 2016 WL 10894023, at *3

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(C.D. Cal. Nov. 18, 2016) (finding a single incident of excessive force at another prison,

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occurring more than a year before filing insufficient to satisfy 28 U.S.C. Section 1915(g)’s

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exception for imminent danger of serious physical injury), aff’d, 708 F. App’x 360 (9th Cir.

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2017).

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By Plaintiff’s own admission, he has no concerns for his safety when advised by

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Sergeant R. Olivarez in April 1, 2021. The allegedly false RVR issued by Defendant Savoie and

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Ostrander’s guilt finding, which are the subject of this Complaint, occurred in 2016, over six

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years ago. Plaintiff’s attempt to link various unrelated incidents to the RVR are speculative and

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conclusory and not “fairly traceable” to the allegedly unlawful conduct of Defendants Savoie or

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Ostrander. Ray v. Lara, 2022 WL 1073607, at *6. Moreover, the subject of the false RVR issued

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by Defendant Savoie is being litigated by Plaintiff in his other case at 1:19-cv-1024-DAD-HBK.

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Based on the foregoing, Plaintiff’s broad allegations of danger are insufficient to warrant an

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exception to the three-strikes rule.

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Based on the foregoing, the Court RECOMMENDS:

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1.

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Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be DENIED under §

1915(g) due to his three-strike status and his failure to meet the imminent danger exception.
2.

This action be DISMISSED without prejudice if, after affording Plaintiff an

opportunity to pay the filing fee, he fails to pay the fee in the time provided.
It is further ORDERED that the Clerk of Court is DIRECTED to randomly assign a
United States District Judge for consideration of these Findings and Recommendations.
NOTICE TO PARTIES
These findings and recommendations will be submitted to the United States district judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after being served with these findings and recommendations, a party may file written

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

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Findings and Recommendations.” Parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

July 28, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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