(PC) Cruz v. Ostrander

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [9] 10 GUILLERMO TRUJILLO CRUZ, Case No. 1:19-cv-0994-AWI-JLT (PC) 11 Plaintiff, ORDER ADOPTING IN PART AND REJECTING IN PART FINDINGS AND 12 v. RECOMMENDATIONS TO DENY 13 LT. J. OSTRANDER, S. SAVOIE, PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 14 Defendants. (Doc. 32) [15] TWENTY-ONE DAY DEADLINE [17] 18 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 19 under 42 U.S.C. § 1983 . The matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 21 On March 3, 2021, the magistrate judge issued findings and recommendations 22 determining that Plaintiff had “three strikes,” prior cases or appeals dismissed because they were 23 frivolous, malicious, or failed to state a claim, and that Plaintiff did not meet the “imminent 24 danger” exception. (Doc. 34.) The magistrate judge recommended the denial of Plaintiff’s 25 motion to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915 . Id. The parties filed 26 cross objections to the findings and recommendations and responses to the party’s objections. 27 (Docs. 35, 38, 39, 40.) [28] 1 Defendants do not object to the conclusion reached by the magistrate judge but instead to 2 the cases relied upon in reaching that conclusion. In particular, two of the district court cases 3 were vacated by the Ninth Circuit and no longer qualified as strikes in the denial of IFP.1 In 4 their place, defendants cite to the following three additional cases filed by the plaintiff that were 5 subsequently dismissed for failure to state a claim and thus serve as strikes pursuant to 28 U.S.C. 6 § 1915: 7 Trujillo v. Gonzalez-Moran, Case No. 17-15200 (9th Cir. Aug. 21, 2017): The Ninth 8 Circuit Court of Appeals determined that plaintiff’s appeal from the dismissal of his case, 1:189 cv-00571-DAG-EPG, was frivolous. 10 Trujillo v. Gomez, Case No. 1:15-cv-0859 EPG (E.D. Cal.): The case was dismissed on 11 February 3, 2017, for failure to state a claim. Plaintiff appealed the decision, which was affirmed 12 by the Ninth Circuit Court of Appeals on October 3, 2017. 13 Trujillo v. Gomez, Case No. 1:14-cv-1797 DAD DLB (E.D. Cal.): This case was 14 dismissed on August 5, 2016, for failure to exhaust administrative remedies. The dismissal was 15 affirmed by the Ninth Circuit Court of Appeals on April 19, 2017, who held that the failure of 16 Plaintiff to exhaust administrative remedies was clear from the face of the complaint. See 17 Trujillo v. Gomez, 688 F. Apop’x 452, 453 (9th Cir. 2017); see also El Shaddai v. Zamora, 833 18 F.3d 1036, 1043-44 (9th Cir. 2016). 19 Upon review of these cases, the court finds that these dismissals count as three strikes for 20 IFP purposes. Plaintiff argues that he was attacked on November 14, 2020, resulting in serious 21 physical injuries, which demonstrates an ongoing pattern of attacks. However, the court is 22 unpersuaded that attacks in August 2016 and November 2020 establish that Plaintiff was in 23 imminent danger of physical harm when he filed this action in July 2019. [24] 25 1 See Cruz v. Munoz, No. 1:14-cv-01215-SAB (PC), 2016 WL 2898405 (E.D. Cal. May 17, 2016) (dismissing case for failure to state a claim), vacated sub nom. Trujillo v. Munoz, 713 26 F. App’x 712 (9th Cir. 2018) (citing Williams v. King, 875 F.3d 500 , 503–04 (9th Cir. 2017) (holding that all parties, including unserved defendants, must consent to magistrate jurisdiction); 27 Cruz v. Munoz, No. 1:14-cv-00976-DLB (PC), 2016 WL 2743206 (E.D. Cal. May 11, 2016) (dismissing case for failure to state a claim), vacated sub nom. Trujillo v. Munoz, 725 F. App’x 28 1 The court has reviewed the file and the parties’ objections and finds the findings and 2 | recommendations to be supported by the record and by the magistrate judge’s analysis. 3 Accordingly, IT IS HEREBY ORDERED that: All. The findings and recommendations filed on March 3, 2021, are ADOPTED IN PART and 5 REJECTED IN PART; 6 P. Plaintiffs application to proceed in forma pauperis (Doc. No. 32) is DENIED; 7B. Plaintiff shall submit the $402.00 filing fee within twenty-one days from the date of this 8 order; and 9 #. Plaintiff is warned that the failure to timely pay the filing fee will result in the dismissal of 10 this action without further notice. [11] D IS SO ORDERED. 13 Pated: _June 4, 2021 — 7 Sz 7 Cb Lec — SENIOR DISTRICT JUDGE