United States District Court, E.D. California
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
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
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
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
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
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).
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).
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.
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.
CONCLUSION AND RECOMMENDATIONS
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. ...