(PC) Cruz v. White

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/3/2019 RECOMMENDING 7 Motion to Proceed IFP be denied and this action be dismissed without prejudice to re-filing upon pre-payment of the filing fee. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE 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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No. 2:19-CV-1304-KJM-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

E. WHITE,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to proceed in forma

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pauperis (ECF No. 7).
The Prison Litigation Reform Act’s “three strikes” provision, found at 28 U.S.C.

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§ 1915(g), provides as follows:

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In no event shall a prisoner bring a civil action . . . under this section if the
prisoner has, on three or more prior occasions, while incarcerated or
detained . . ., brought an action . . . in a court of the United States that was
dismissed on the ground that it is 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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Id.

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Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the

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reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma

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pauperis unless the imminent danger exception applies. Dismissals for failure to exhaust

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available administrative remedies generally do not count as “strikes” unless the failure to exhaust

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is clear on the face of the complaint. See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015).

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Dismissed habeas petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398

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F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a

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disguised civil rights action, the district court may conclude that it counts as a “strike.” See id. at

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n.12.

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When in forma pauperis status is denied, revoked, or otherwise unavailable under

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§ 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the

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action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth

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Circuit reviewed a district court’s screening stage dismissal of a prisoner civil rights action after

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finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128

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F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than

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simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the

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plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the

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Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded

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that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes”

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provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant

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an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated

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that the appellant “may resume this appeal upon prepaying the filing fee.”

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This conclusion is consistent with the conclusions reached in at least three other

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circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status

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under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically

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held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because

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“[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original).

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The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th
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Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002).

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In this case, plaintiff has had three prior actions dismissed as frivolous and/or for

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failure to state a claim. Those actions are: Trujillo v. Sherman, No. 1:14-CV-1401-BAM;

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Trujillo v. Ruiz, 1:14-CV-0975-SAB; and Cruz v. Gomez, 1:15-CV-0895-EPG. A review of

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plaintiff’s complaint in the current action does not reflect any allegations of imminent danger of

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serious physical injury.

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Based on the foregoing, the undersigned recommends that:

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Plaintiff’s motion for in forma pauperis status (ECF No. 7) be denied; and

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This action be dismissed without prejudice to re-filing upon pre-payment of

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the filing fee.

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These findings and recommendations are submitted to the United States District

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

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 3, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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