Cruz
v.
Valdez

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIANov 6, 2018
No. 1:18-cv-00571-DAD-EPG (E.D. Cal. Nov. 6, 2018)

No. 1:18-cv-00571-DAD-EPG

11-06-2018

GUILLERMO TRUJILLO CRUZ, Plaintiff, v. B. VALDEZ, Defendant.


ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

(Doc. Nos. 2, 9, 11)

Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se with this civil rights action brought pursuant to 42 U.S.C. § 1983. On April 27, 2018, plaintiff commenced this action by filing a complaint (Doc. No. 1) and an application to proceed in forma pauperis (Doc. No. 2). 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 August 13, 2018, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied, and that plaintiff be required to pay the $400 filing fee. (Doc. No. 9). The findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within twenty-one days after service. (Id. at 4.) On August 27, 2018, plaintiff filed his objections to the findings and recommendations. (Doc. No. 10). On September 6, 2018, plaintiff filed a second application to proceed in forma pauperis. (Doc. No. 11).

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned declines to adopt the findings and recommendations. The findings and recommendations cited four separate cases filed by plaintiff that, in the assigned magistrate judge's view, counted as strikes under 28 U.S.C. § 1915(g). Each is addressed in turn.

First, the findings and recommendations cited to the dismissal in Trujillo v. Sherman, 1:14-cv-01401-BAM (E.D. Cal. Apr. 24, 2015). A review of that case demonstrates that the action was dismissed for failure to state a claim upon which relief could be granted. That case accordingly counts as a strike dismissal against plaintiff under 28 U.S.C. § 1915(g).

Second, the findings and recommendations cited to the dismissal in Trujillo v. Ruiz, 1:14-cv-00975-SAB (E.D. Cal. Jan 6, 2016). That case also was dismissed for failure to state a claim upon which relief could be granted. That case also counts as a dismissal strike against plaintiff.

Third, the findings and recommendations cited to Trujillo v. Munoz, 1:14-cv-00976-DLB (E.D. Cal. May 11, 2016). That case was previously dismissed for failure to state a claim. However, on February 27, 2018, the Ninth Circuit Court of Appeals vacated that judgment and remanded the case to the district court in light of the decision in Williams v. King, 875 F.3d 500 (9th Cir. 2017). Following remand, the newly-assigned magistrate judge issued findings and recommendations, recommending that the action proceed on plaintiff's claim alleging unreasonable searches in violation of the Fourth Amendment. On May 23, 2018, United States District Judge Lawrence J. O'Neill adopted those findings and recommendations in full. Because this action was not dismissed and is currently proceeding on the claim found by the court to be cognizable, the court concludes that this case cannot serve as the basis of a strike for purposes of 28 U.S.C. § 1915(g).

Finally, the findings and recommendations cited to Trujillo v. Munoz, 1:14-cv-01215-SAB (E.D. Cal. May 17, 2016). That case was previously dismissed for failure to state a claim, but that ruling was also subsequently vacated and remanded by the Ninth Circuit in light of the decision in Williams. On remand, and following the filing of an amended complaint by plaintiff, the assigned magistrate judge issued findings and recommendations, recommending that the case be permitted to proceed on plaintiff's claim for cruel and unusual punishment under the Eighth Amendment, as well as on his claim of retaliation in violation of the First Amendment. Those findings and recommendations are currently pending before United States District Judge Anthony W. Ishii. Because this action has not been dismissed but remains pending before the court, it also cannot constitute a strike dismissal for purposes of 28 U.S.C. § 1915(g). Thus, only two of the cases identified in the findings and recommendations are appropriately categorized as strikes.

Accordingly,

1. The court declines to adopt the findings and recommendations issued on August 13, 2018 (Doc. No. 9);
2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is granted;
3. Plaintiff's second motion to proceed in forma pauperis (Doc. No. 11) is denied as having been rendered moot by this order; and
4. This action is referred back to the assigned magistrate judge for further proceedings consistent with this order.

IT IS SO ORDERED.

Dated: November 6 , 2018

/s/_________


UNITED STATES DISTRICT JUDGE