Opinion
No. 1:20-cv-00763-DAD-GSA (PC)
07-06-2020
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. C. RODRIGUEZ, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (Doc. Nos. 2, 4)
Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se with 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 June 4, 2020, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's motion to proceed in forma pauperis (Doc. No. 2) be denied because plaintiff had suffered three or more prior strike dismissals and that plaintiff be required to pay the $400.00 filing fee in full for this action. (Doc. No. 4.) The findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days of service. (Id. at 6.) On June 12, 2020, plaintiff filed timely objections to the pending findings and recommendations. (Doc. No. 5.) /////
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the court has conducted a de novo review of this case. Having carefully reviewed the entire file, including plaintiff's objections, the court concludes that the 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 of § 1915(g), he contends that he qualifies for the exception for prisoners who face "imminent danger of serious physical injury." (Doc. No. 5 at 1-2.) In his objections, plaintiff reiterates his allegations of physical abuse from June 2019. (Id.) But despite being in purported imminent danger of physical injury at that time, plaintiff did not file this action until June 2, 2020, nearly a full year later. (Doc. No. 1.) This belies his assertions that he faced imminent danger of serious physical injury at the time he filed the complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) ("The exception [under § 1915(g)] applies if the complaint makes a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing."). Moreover, plaintiff's contemporaneous allegations of misconduct from May 2020 consist only of alleged unspecified verbal threats of physical injury and a claim that prison officials had not (yet) respond to an inmate grievance that plaintiff asserts he filed on May 22, 2020. (Doc. No. 5 at 1.) Plaintiff's allegations fail to show that he faces imminent danger of serious physical injury.
Accordingly:
1. The findings and recommendations issued on June 4, 2020 (Doc. No. 4) are adopted;///// ///// /////
2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is denied;
3. Within thirty (30) days of service of this order, plaintiff shall pay the $400.00 filing fee in full in order to proceed with this action or face dismissal of this case; and
4. The matter is referred back to the assigned magistrate judge for proceedings consistent with this order.IT IS SO ORDERED.
Dated: July 6 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE