(PC) Cruz v. Ochoa

Opinion

GUILLERMO TRUJILLO CRUZ, Case No. 1:19-cv-01570-JDP Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTIONS TO PROCEED IN FORMA v. PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY- Defendant. ECF Nos. 3 and 4 OBJECTIONS DUE WITHIN 14 DAYS ORDER TO ASSIGN CASE TO DISTRICT JUDGE Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. On November 14 and 15, 2019, plaintiff filed applications to proceed in forma pauperis under 28 U.S.C. § 1915. ECF Nos. 3 and 4. The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 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.” 28 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief maybe granted.1 Plaintiff has been informed in at least one other case that he is subject to § 1915(g).2 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). At the time of filing, plaintiff resided at Pelican Bay State Prison, but his allegations concern events said to have taken place at North Kern State Prison. ECF No. 1 at 2. Plaintiff makes no plausible argument for why alleged threats and harassment at the North Kern facility put him in imminent danger at Pelican Bay. See ECF No. 1 at 3. Accordingly, plaintiff’s in forma pauperis applications should be denied, and he should pay the filing fee in full, since he has accrued three or more strikes and was not under imminent danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). Order The clerk of court is directed to assign this case to a district judge who will review the findings and recommendations. Findings and Recommendations Based on the foregoing, it is hereby recommended that: 1. plaintiff’s in forma pauperis applications, ECF No. 3 and 4, be denied; 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations; and 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations, all pending motions be terminated, and this action be dismissed without prejudice. I submit these findings and recommendations to a district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

1 The cases include Cruz v. Munoz, No. 1:14-cv-01215-SAB (E.D. Cal.) (dismissed for failure to state a claim on May 17, 2016); Cruz v. Munoz, No. 1:14-cv-00976-DLB (E.D. Cal.) (dismissed for failure to state a claim on May 11, 2016); Cruz v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal.) (dismissed for failure to state a claim on January 6, 2016); and (4) Trujillo v. Sherman, No. 1:14- cv01401-BAM (E.D. Cal.) (dismissed for failure to state a claim on April 24, 2015). 2 See Cruz v. Stebbins, 1:17-cv-00789-AWI-GSA (E.D. Cal. 2019). Eastern District of California. Within fourteen days of the service of the findings and recommendations, plaintiff may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). : —N prssann — Dated: _ November 19, 2019 UNI STATES MAGISTRATE JUDGE No. 205.