(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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, 12 Plaintiff, 13 14 No. 2:19-CV-1304-KJM-DMC-P v. FINDINGS AND RECOMMENDATIONS E. WHITE, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to proceed in forma 19 pauperis (ECF No. 7). The Prison Litigation Reform Act’s “three strikes” provision, found at 28 U.S.C. 20 21 § 1915(g), provides as follows: 22 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. 23 24 25 Id. 26 27 /// 28 /// 1 1 Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the 2 reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma 3 pauperis unless the imminent danger exception applies. Dismissals for failure to exhaust 4 available administrative remedies generally do not count as “strikes” unless the failure to exhaust 5 is clear on the face of the complaint. See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). 6 Dismissed habeas petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 7 F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a 8 disguised civil rights action, the district court may conclude that it counts as a “strike.” See id. at 9 n.12. 10 When in forma pauperis status is denied, revoked, or otherwise unavailable under 11 § 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the 12 action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth 13 Circuit reviewed a district court’s screening stage dismissal of a prisoner civil rights action after 14 finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128 15 F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than 16 simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the 17 plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the 18 Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded 19 that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes” 20 provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant 21 an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated 22 that the appellant “may resume this appeal upon prepaying the filing fee.” 23 This conclusion is consistent with the conclusions reached in at least three other 24 circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status 25 under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically 26 held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because 27 “[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original). 28 The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th 2 1 Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002). 2 In this case, plaintiff has had three prior actions dismissed as frivolous and/or for 3 failure to state a claim. Those actions are: Trujillo v. Sherman, No. 1:14-CV-1401-BAM; 4 Trujillo v. Ruiz, 1:14-CV-0975-SAB; and Cruz v. Gomez, 1:15-CV-0895-EPG. A review of 5 plaintiff’s complaint in the current action does not reflect any allegations of imminent danger of 6 serious physical injury. 7 Based on the foregoing, the undersigned recommends that: 8 1. Plaintiff’s motion for in forma pauperis status (ECF No. 7) be denied; and 9 2. This action be dismissed without prejudice to re-filing upon pre-payment of 10 the filing fee. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written objections 14 with the court. Responses to objections shall be filed within 14 days after service of objections. 15 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 Dated: October 3, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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