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Cruz v. Gonzalez

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 24, 2020
No. 1:19-cv-01270-DAD-SAB (PC) (E.D. Cal. Mar. 24, 2020)

Opinion

No. 1:19-cv-01270-DAD-SAB (PC)

03-24-2020

GUILLERMO TRUJILLO CRUZ, Plaintiff, v. L. GONZALEZ, Defendant.


ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND

(Doc. Nos. 7, 8)

Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se in this civil rights action pursuant to 42 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 October 11, 2019, the assigned magistrate judge issued findings and recommendations recommending that plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915(g) be denied because plaintiff had suffered three or more prior strike dismissals of actions filed by him and that he be ordered to pay the required $400.00 filing fee for this action in full within thirty (30) days. (Doc. No. 8 at 2-3.) The findings and recommendations were served on plaintiff and contained notice that objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.) On November 8, 2019, plaintiff filed objections to the findings and recommendations. (Doc. No. 12.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections, the court concludes that the magistrate judge's findings and recommendations are supported by the record and proper analysis.

Although plaintiff does not contest that he has accumulated at least three prior strike dismissals, enough to be barred by the "three strikes" provision, he contends that he qualifies for the exception under the provision for prisoners who face "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g). In his objections, plaintiff merely asserts that he "genuinely fears he will continue to face more of the same abuse," referring to a prior incident of alleged excessive use of force, and that "the Office of Internal Affairs turn[ed] a blind-eye to that risk and did nothing to protect him from that risk." (Doc. No. 12 at 3-4.) However, plaintiff's objections do not address the magistrate judge's finding that "[p]laintiff presents absolutely no allegations that he faced a present threat of serious physical injury at the time he filed the complaint, as his allegations relate solely to the alleged excessive force that took place over two months prior to filing the complaint." (Doc. No. 8 at 2.) Accordingly, plaintiff's objections provide no basis upon which to reject the pending findings and recommendations.

Accordingly,

1. The findings and recommendations issued on October 11, 2019 (Doc. No. 8) are adopted in full;

2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 7) is denied;

3. Within thirty (30) days from the date of service of this order, plaintiff shall pay the $400.00 filing fee in full in order to proceed with this action;

4. Plaintiff is forewarned that failure to pay the filing fee within the specified time will result in the dismissal of this action; and

5. This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order.
IT IS SO ORDERED.

Dated: March 24 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE


Summaries of

Cruz v. Gonzalez

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 24, 2020
No. 1:19-cv-01270-DAD-SAB (PC) (E.D. Cal. Mar. 24, 2020)
Case details for

Cruz v. Gonzalez

Case Details

Full title:GUILLERMO TRUJILLO CRUZ, Plaintiff, v. L. GONZALEZ, Defendant.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 24, 2020

Citations

No. 1:19-cv-01270-DAD-SAB (PC) (E.D. Cal. Mar. 24, 2020)