(PC) Cruz v. Baker, No. 1:2018cv01641 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 5 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DENYING 2 Motion to Proceed In Forma Pauperis; and ORDER Directing Plaintiff to Submit the $400.00 Filing Fee Within Thirty (30) Days or the Action Will Be Dismissed signed by Chief Judge Lawrence J. O'Neill on 12/13/2018. (Jessen, A)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, 12 13 14 Plaintiff, v. B. BAKER., 15 Defendant. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-01641-LJO-SAB (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DIRECTING PLAINTIFF TO SUBMIT THE $400.00 FILING FEE FOR THIS ACTION WITHIN THIRTY DAYS OR THE ACTION WILL BE DISMISSED [ECF Nos. 2, 3, 4, 5, 6] Plaintiff Guillermo Trujillo Cruz is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On November 30, 2018, the Magistrate Judge issued Findings and Recommendations 21 recommending that Plaintiff’s application to proceed in forma pauperis be denied because suffered 22 three or more strikes under 28 U.S.C. § 1915(g), and the complaint allegations did not meet the 23 imminent danger of serious physical injury. (ECF No. 5.) The Findings and Recommendations were 24 served on Plaintiff and contained notice that objections were to be filed within twenty-one (21) days. 25 (Id.) Plaintiff filed objections on December 12, 2018. (ECF No. 6.) 26 In his objections, Plaintiff continues to argue that he is in imminent danger of serious physical 27 harm based on past incidents of alleged excessive force by correctional officer B. Baker at Kern 28 Valley State Prison. (ECF No. 6.) Plaintiff’s objections are without merit. As stated in the Findings 1 1 and Recommendations past incidents of alleged excessive force do not meet the imminent physical 2 danger exception under section 1915(g). In addition, Plaintiff is currently (as well as at the time of 3 filing) incarcerated at Pelican Bay State Prison, not Kern Valley State Prison where officer Baker is 4 employed. Accordingly, Plaintiff has not and cannot meet the imminent physical danger exception 5 under section 1915(g). 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court 7 has conducted a de novo review of this case. Having carefully reviewed the entire file, including 8 Plaintiff’s objections, the Court finds the Findings and Recommendations to be supported by the 9 record and proper analysis 10 Accordingly, it is HEREBY ORDERED that: 11 1. The Finding and Recommendations issued on November 30, 2018, are adopted in full; 12 2. Plaintiff’s application to proceed in forma pauperis is DENIED; and 13 3. Within thirty (30) days from the date of service of this action, Plaintiff shall pay the 14 $400.00 filing fee or this action will be dismissed. 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ December 13, 2018 UNITED STATES CHIEF DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2