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Cruz v. Leyva

United States District Court, E.D. California

March 30, 2018

GUILLERMO TRUJILLO CRUZ, Plaintiff,
v.
LEYVA, et al., Defendants.

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF BE PRECLUDED FROM PROCEEDING IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) AND THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE IN FULL (ECF No. 1.) OBJECTIONS, IF ANY, DUE IN 14 DAYS

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On March 23, 2018, Plaintiff filed the Complaint commencing this action. (ECF Nos. 1.)

         II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

         28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 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.”

         III. ANALYSIS

         A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g) and should be precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under imminent danger of serious physical injury. Plaintiff has filed numerous unsuccessful cases in the Eastern District of California under the names “Guillermo Trujillo Cruz, ” “Guillermo Cruz Trujillo, ” and “Guillermo Trujillo.” Court records reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. The Court takes judicial notice of the following four cases: (1) Cruz v. Munoz, No. 1:14-cv-01215-SAB (PC) (E.D. Cal.) (dismissed for failure to state a claim on May 17, 2016); (2) Cruz v. Munoz, No. 1:14-cv-00976-DLB (PC) (E.D. Cal.) (dismissed for failure to state a claim on May 11, 2016); (3) Cruz v. Ruiz, No. 1:14-cv-00975-SAB (PC) (E.D. Cal.) (dismissed for failure to state a claim on January 6, 2016); and (4) Trujillo v. Sherman, No. 1:14-cv-01401-BAM (PC) (E.D. Cal.) (dismissed for failure to state a claim on April 24, 2015).

         The availability of the imminent danger exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury must be a real, present threat, not merely speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger” exception is available “for genuine emergencies, ” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

         The Court has reviewed Plaintiff's Complaint in this action and finds that Plaintiff does not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint, Plaintiff alleges that in April 2016, he was wrongfully found guilty of a rules violation, detained in Ad-Seg, and recommended for transfer to High Desert State Prison. Plaintiff was transferred to High Desert State Prison and arrived there on August 11, 2016, where he was assaulted by other inmates, resulting in hospitalization to treat his injuries. The Complaint is devoid of any showing that Plaintiff was under imminent danger of serious physical injury at the time he filed the Complaint.

         Therefore, Plaintiff should be precluded from proceeding in forma pauperis in this action, and should be required to submit the appropriate filing fee in order to proceed with this case. Accordingly, this action should be dismissed, without prejudice to refiling with the submission of the $400.00 filing fee in full.

         IV. CONCLUSION AND RECOMMENDATIONS

         Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Plaintiff be precluded from proceeding in forma pauperis in this action, pursuant to 28 U.S.C. ...

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