(PC) Cruz v. Ostrander

• Court: District Court, E.D. California
• Decided: February 2, 2021
• Docket: 1:19-cv-00994
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, Case No. 1:19-cv-0994-AWI-JLT (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SUBMIT APPLICATION TO PROCEED IN 13 v. FORMA PAUPERIS OR PAY FILING FEE

14 LT. J. OSTRANDER, S. SAVOIE, FOURTEEN-DAY DEADLINE 15 Defendants. 16 This action proceeds on plaintiff’s first amended complaint on a First Amendment retaliation 17 claim against Correctional Officer S. Savoie and a Fourteenth Amendment equal protection claim 18 against Lt. J. Ostrander. (Doc. 17.) Defendants have since been served and appeared in this case. 19 Recently, defendants filed a motion to strike the first amended complaint for plaintiff’s 20 failure to pay the filing fee or to submit an application to proceed in forma pauperis. (Doc. 29.) 21 Indeed, it appears that plaintiff has not paid the filing fee or sought leave to proceed in forma 22 pauperis. He will therefore be ordered to do so immediately. 23 It also appears that plaintiff is a three strikes litigant within the meaning of 28 U.S.C. § 24 1915(g). See Cruz v. Valdez; 1:18-cv-0571-DAD-EPG, Doc. 34. The Prison Litigation Reform Act 25 of 1995 was enacted, and became effective, on April 26, 1996. It provides that a prisoner may not 26 bring a civil action in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 27 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 28 1 of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to 2 state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 3 serious physical injury.” 28 U.S.C. § 1915(g). Section 1915(g) is commonly referred to as the “three 4 strikes rule.” The three strikes rule “requires so-called ‘frequent filer’ prisoners to prepay the entire 5 filing fee before federal courts may consider their civil actions and appeals.” Kinnell v. Graves, 6 265 F.3d 1125, 1127 (10th Cir. 2001). 7 A plaintiff barred from bringing an action in forma pauperis because he has three strikes 8 may still proceed without prepaying court fees if he can show he is “under imminent danger of 9 serious physical injury.” 28 U.S.C. § 1915(g). The availability of the exception turns on the 10 “conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time.” 11 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[T]he exception applies if the 12 complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical 13 injury’ at the time of filing.” Id. at 1055. In order to satisfy the imminence prong, the prisoner must 14 allege that the danger is ongoing. See id. at 1056-57. Therefore, should plaintiff decide to avail 15 himself of the imminent danger exception, he shall show that he meets the exception’s requirements 16 at the time that he initiated this action. Based on the foregoing, the Court ORDERS as follows: 17 1. The January 14, 2021, order directing defendants to file a responsive pleading (Doc. 27) 18 is VACATED; 19 2. Within fourteen days, plaintiff shall submit the $405 filing fee in full or file an 20 application to proceed in forma pauperis; and 21 3. The court reserves ruling on defendants’ motion to strike. 22 IT IS SO ORDERED. 23

24 Dated: February 1, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25

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