United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, REVOKING
PLAINTIFF'S IN FORMA PAUPERIS STATUS, AND REQUIRING
PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION
(DOC. NO. 39)
Plaintiff
Guillermo Trujillo Cruz, a state prisoner, proceeds pro
se and in forma pauperis in this civil rights
action brought pursuant to 28 U.S.C. § 1983. The matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On July
16, 2019, the assigned magistrate judge issued findings and
recommendations recommending that plaintiff's in
forma pauperis be revoked and that plaintiff be required
to pay the $400.00 filing fee in full to proceed with this
action because (1) he is subject to the three strikes bar
under 28 U.S.C. § 1915(g) and (2) the allegations in
plaintiff's complaint to do not satisfy the
“imminent danger of serious physical injury”
exception to § 1915(g). (Doc. No. 39.) Those findings
and recommendations were served on plaintiff and contained
notice that any objections thereto were to be filed within
fourteen (14) days after service. (Id. at 2.) After
requesting and receiving an extension to file his objections,
plaintiff filed objections on August 5, 2019. (Doc. Nos. 41,
42, 43.)
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the undersigned has conducted a de
novo review of the case. Having carefully reviewed the
entire file, including plaintiff's objections, the
undersigned concludes that the findings and recommendations
are supported by the record and proper
analysis.[1]
Plaintiff's
only objection to the findings and recommendations is that he
qualifies for the “imminent danger of serious physical
injury” exception to dismissal under § 1915(g). As
the pending findings and recommendations note, however, the
allegations set forth in plaintiff's complaint are
insufficient to trigger the exception. Plaintiff's
complaint alleges that a correctional officer sexually
harassed him and threatened him when he declined her
advances, but he does not allege that he is currently at risk
of physical harm. Neither the allegations of plaintiff's
complaint nor his objections to the pending findings and
recommendations evince an “imminent danger of serious
physical injury” at the time the complaint was filed.
28 U.S.C. § 1915(g); see Andrews v. Cervantes,
493 F.3d 1047, 1056 (9th Cir. 2007) (defining imminent to
refer not “only to events that are already taking
place, but to those events ‘ready to take place' or
‘hanging threateningly over one's head'”)
(citations omitted); see also Id. at 1053
(“[T]he availability of the exception turns on the
conditions a prisoner faced at the time the complaint was
filed, not at some earlier or later time.”); Lewis
v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting
that § 1915(g) is available for “genuine
emergencies” where “time is pressing” and a
threat is “real and proximate”). Indeed, in his
objections, plaintiff acknowledges that he “knows that
sexual harassment and verbal threats alone do[] not cause
[him to qualify for the imminent danger exception].”
(Doc. No. 43 at 2.) Plaintiffs complaint fails to make
“specific fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.”
Cervantes, 493 F.3d at 1056 (quoting Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). The court
therefore concludes that plaintiff does not qualify for the
“imminent danger of serious physical injury”
exception to dismissal under § 1915(g)
Finally,
before the pending findings and recommendations were issued,
plaintiff filed a separate motion to proceed in forma
pauperis in this action. (See Doc. No. 38.)
Having concluded that plaintiff is subject to the
three-strikes bar and that he does not qualify for the
imminent danger exception to that bar, plaintiffs motion to
proceed in forma pauperis will be denied.
Accordingly:
1. The findings and recommendations (Doc. No. 39) issued on
July 16, 2019 are adopted in full;
2. In accordance with 28 U.S.C. § 1915(g), plaintiffs
in forma pauperis status is revoked;
3. Within twenty-one (21) days following
service of this order, plaintiff shall pay the $400.00 filing
fee in full to proceed with this action. If plaintiff fails
to pay the filing fee within the specified time, this action
will be dismissed;
4. Plaintiff s separate motion to proceed in forma
pauperis (Doc. No. 38) is denied; and
5. The matter is referred back to the assigned magistrate for
proceedings consistent with this order.
IT IS
SO ORDERED.
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