(PC) Cruz v. Valdez, No. 1:2018cv00571 - Document 37 (E.D. Cal. 2019)
Court Description: ORDER ADOPTING 24 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER GRANTING 22 Defendant's Motion for an Order Revoking Plaintiff's In Forma Pauperis Status; ORDER REVOKING Plaintiff's In Forma Pauperis Status; and ORDER Directing Plaintiff to Pay the $400.00 Filing Fee in Full Within Forty-Five (45) Days signed by District Judge Dale A. Drozd on 9/3/2019. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, 12 13 14 15 No. 1:18-cv-00571-DAD-EPG (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS B. VALDEZ, (Doc. No. 24) Defendant. 16 17 Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 20 and Local Rule 302. 21 The undersigned previously declined to adopt the assigned magistrate judge’s August 13, 22 2018 findings and recommendations recommending that plaintiff’s application to proceed in 23 forma pauperis be denied. (See Doc. No. 14.) The undersigned concluded that the dismissals in 24 two of the four cases relied upon in the August 13, 2018 findings and recommendations as strike 25 dismissals did not properly qualify as strikes under 28 U.S.C. § 1915(g). (See id. at 2–3.) The 26 court therefore granted plaintiff’s motion to proceed in forma pauperis. (Id. at 3.) Thereafter, the 27 magistrate judge screened plaintiff’s complaint and found cognizable claims for conspiracy, 28 retaliation, and cruel and unusual punishment. (See Doc. No. 17.) 1 1 On February 4, 2019, after defendant pointed the court to additional actions and appeals 2 filed by plaintiff that were eventually dismissed for failure to state a claim or as frivolous, the 3 magistrate judge issued the pending findings and recommendations, recommending that 4 defendant’s motion for an order revoking plaintiff’s in forma pauperis status (Doc. No. 22) be 5 granted, finding that plaintiff is subject to the three-strikes bar under 28 U.S.C. § 1915(g) and has 6 not met the imminent danger exception to that provision. (Doc. No. 24 at 3–5.) The findings and 7 recommendations were served on plaintiff and contained notice that any objections thereto were 8 to be filed within twenty-one (21) days after service. (Id.) On March 1 and April 5, 2019, 9 plaintiff filed untimely objections. (Doc. Nos. 28, 30, 33.) 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Rule 11 304, the undersigned has conducted a de novo review of this case. Having carefully reviewed the 12 entire file, including plaintiff’s objections, the court finds the findings and recommendations to be 13 supported by the record and proper analysis. Plaintiff’s objections fail to address the magistrate judge’s conclusion that he is subject to 14 15 the three strikes bar under 28 U.S.C. § 1915(g) since he has filed at least four prior actions that 16 have been dismissed for failure to state a claim or as frivolous.1 The court finds no legal basis 17 upon which to question the magistrate judge’s findings and recommendations in that regard. 18 Furthermore, as the magistrate judge properly concluded, the allegations set forth in plaintiff’s 19 complaint are insufficient to trigger the “imminent danger of serious physical injury” exception to 20 dismissal under § 1915(g). To the extent plaintiff has attempted in his objections to raise new 21 issues and claims based upon events that occurred either before or after this action was initiated, 22 those claims are not relevant to the court’s finding that he has failed to establish he was in 23 imminent danger at the time the complaint in this action was filed. 24 ///// 25 1 26 27 28 See Trujillo v. Sherman, No. 1:14-cv-01401 (E.D. Cal. Apr. 24, 2015) (dismissing plaintiff’s complaint for failure to state a claim); Trujillo v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal. Jan. 6, 2016) (dismissing plaintiff’s complaint for failure to state a claim); Trujillo v. Gomez, No. 1:15cv-00859-EPG (E.D. Cal. Feb. 3, 2017) (dismissing plaintiff’s complaint with prejudice for failure to state a claim); Trujillo v. Gonzalez-Moran, No. 17-15200 (9th Cir. July 28, 2017 (dismissing plaintiff’s appeal as frivolous and denying his motions to proceed IFP). 2 1 Accordingly, 2 1. 3 4 full; 2. 5 6 The February 4, 2019 findings and recommendations (Doc. No. 24) are adopted in Defendant’s motion for an order revoking plaintiff’s in forma pauperis status (Doc. No. 22) is granted; 3. 7 The November 7, 2019 order granting plaintiff’s application to proceed in forma pauperis (Doc. No. 16) is vacated; 8 4. Plaintiff’s in forma pauperis status is revoked; 9 5. Within forty-five (45) days following service of this order, plaintiff shall pay the 10 $400.00 filing fee in full to proceed with this action. If plaintiff fails to pay the 11 filing fee within the specified time, this action will be dismissed; and 12 13 14 15 6. This case is referred back to the assigned magistrate judge for further proceedings. IT IS SO ORDERED. Dated: September 3, 2019 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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