Opinion
Case No. 1:19-cv-01305-LJO-BAM (PC)
10-15-2019
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. RAMIREZ, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO PAY FILING FEE (ECF No. 3)
Plaintiff Guillermo Trujillo Cruz ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 18, 2019. (ECF No. 1.) Although Plaintiff submitted a copy of his prison trust account statement, he did not pay the filing fee or file an application to proceed in forma pauperis in this action. (ECF No. 2.)
On September 19, 2019, the assigned Magistrate Judge issued findings that Plaintiff is subject to the "three strikes" bar under 28 U.S.C. § 1915(g) and the allegations in the complaint do not satisfy the imminent danger exception to section 1915(g), and therefore recommended that this action be dismissed, without prejudice, for Plaintiff's failure to pay the filing fee. (ECF No. 3.) 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 3.) Plaintiff filed objections to the findings and recommendations on October 9, 2019. (ECF No. 4.)
In his objections, Plaintiff argues that the findings and recommendations are improper because prison officials have prevented him from accessing the law library to complete the appropriate in forma pauperis application, and the Court has also neglected to send him a form to complete. As to the imminent danger exception, Plaintiff further argues that he notified prison officials that he was in danger due to Defendant Ramirez's alleged verbal threats, and that because he has been transferred back to Kern Valley State Prison, he is again in imminent danger. Plaintiff contends that it is irrelevant that he was housed at Pelican Bay State Prison at the time the complaint was filed. (Id.)
Plaintiff's objections are unpersuasive. Even if Plaintiff had submitted a completed in forma pauperis application, the Magistrate Judge would have been required to review his application pursuant to section 1915(g). The Magistrate Judge conducted the review even in the absence of a completed application, and found that Plaintiff was subject to the "three strikes" bar, and that he did not meet the imminent danger exception. As to Plaintiff's transfer back to North Kern State Prison, Plaintiff's allegations regarding Defendant Ramirez's threats and their connection to any future assaults by other inmates or prison staff are too speculative and conclusory to support for the Court to find that Plaintiff faces an ongoing or imminent danger of serious physical injury.
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.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, (ECF No. 3), issued on September 19, 2019, are adopted in full; andIT IS SO ORDERED.
2. This action is dismissed, without prejudice, due to Plaintiff's failure to pay the filing fee.
Dated: October 15 , 2019
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE