1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUILLERMO TRUJILLO CRUZ, Case No. 22-cv-03742-HSG

8 Plaintiff, ORDER DIRECTING PLAINTIFF TO

SHOW CAUSE WHY HIS REQUEST

9 v. FOR LEAVE TO PROCEED IN

FORMA PAUPERIS SHOULD NOT BE

10 A. ETZEL, DENIED 11 Defendant. Re: Dkt. No. 2

12 13 Plaintiff, an inmate at Pelican Bay State Prison, filed this pro se civil rights action pursuant 14 to 42 U.S.C. § 1983. He has requested leave to proceed in forma pauperis. Dkt. No. 2. For the 15 reasons set forth below, the Court orders Plaintiff to show cause why his request for leave to 16 proceed in forma pauperis should not be denied pursuant to the three strikes provision set forth in 17 28 U.S.C. § 1915. 18 DISCUSSION 19 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 20 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 21 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 22 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 23 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 24 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 25 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he imminent danger 26 exception to the PLRA three-strikes provision requires a nexus between the alleged imminent 27 danger and the violations of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th 1 A. Prior Denials of In Forma Pauperis Status 2 Plaintiff is a frequent litigant. Plaintiff has filed at least thirty-nine cases in the Eastern 3 District of California, see, e.g., Trujillo v. Alvarez, C No. 14-cv-00976-LJO-EPG; Guillermo 4 Trujillo Cruz v. Gomez, et al., C No. 15-cv-00859-EPG; Cruz v. Biter, et al.C No. 17-cv-00084- 5 AWI-MJS; Cruz v. Valdez, C No. 18-cv-00571; and Cruz v. Chappuis, C No. 19-cv-01467-WBS- EFB. He has filed at least eight cases in the Northern District, including the instant action. See 6 Cruz v. Gutierrez, C No. 19-cv-04726 HSG; Cruz v. Kumbat, C No. 19-cv-05825 HSG; Cruz v. 7 Pierston, C No. 19-cv-08039 HSG; Cruz v. Ford, C No. 19-7649; Cruz v. Ortiz, C No. 20-cv- 8 00176; Cruz v. Chandler, C No. 20-cv-3421; and Cruz v. Bedusa, C No. 22-cv-00670. In the 9 other seven cases, the Court found that Plaintiff had at least three cases dismissed that counted as 10 “strikes”1 and had not demonstrated that he qualified for the imminent danger exception. The 11 Court therefore denied him leave to proceed in forma pauperis in these cases pursuant to 28 12 U.S.C. § 1915(g). See Cruz v. Gutierrez, C No. 19-cv-04726 HSG, Dkt. No. 15 (Jan. 16, 2020), 13 Dkt. No. 19 (Mar. 6, 2020) (revoking leave to proceed in forma pauperis); Cruz v. Kumbat, C No. 14 19-cv-05825 HSG, Dkt. No. 11 (Jan. 16, 2020), Dkt. No. 16 (Mar. 19, 2020) (revoking leave to 15 proceed in forma pauperis); Cruz v. Pierston, C No. 19-cv-08039 HSG, Dkt. No. 8 (Jan. 16, 16 2020), Dkt. No. 14 (Mar. 9, 2020); Cruz v. Ford, C No. 19-7649, Dkt. No. 13 (Mar. 9, 2020) 17 (revoking leave to proceed in forma pauperis); Cruz v. Ortiz, C No. 20-cv-00176, Dkt. No. 15 18 (Jun. 22, 2020); Cruz v. Chandler, C No. 20-cv-3421, Dkt. No. 7 (Sept. 28, 2020); and Cruz v. 19 Bedusa, C No. 22-cv-00670, Dkt. No. 5 (Feb. 16, 2022). Because Plaintiff has suffered at least 20 three cases dismissed that count as “strikes,” pursuant to 28 U.S.C. § 1915(g), he may not proceed 21 in forma pauperis in this action unless he demonstrates that he is in imminent danger of serious 22 physical injury at the time he filed the complaint. 23 B. Complaint 24 The complaint makes the following allegations. 25 1 The Court found that the following cases counted as strikes: (1) Trujillo v. Sherman, C No. 1:14- 26 cv-01401-BAM (PC), 2015 WL 13049186 (E.D. Cal. Apr. 24, 2015); (2) Cruz v. Ruiz, C No. 1:15-cv-00975-SAB-PC, 2016 WL 8999460 (E.D. Cal. Jan. 6, 2016); (3) Cruz v. Gomez, 2017 27 WL 1355872 (E.D. Cal. Feb. 3, 2017); (4) Trujillo v. Gomez, C No. 14-cv-01797 DAD DLB, 2016 1 On or about November 22, 2021, named defendant PBSP correctional officer Etzel, along 2 with receiving and release staff, maliciously damaged Plaintiff’s personal property in retaliation 3 for Plaintiff reporting PBSP officers Chandler and Bedusa’s unlawful destruction of Plaintiff’s 4 personal property. Defendant Etzel falsely claims that Plaintiff’s personal property was already 5 altered and destroyed when found. Defendant Etzel refused to allow Plaintiff to send home his 6 damaged property. On or about May 27, 2022, defendant Etzel maliciously and sadistically had 7 Plaintiff assaulted in front of his cell “by using anonymous resources to do his ‘dirty work’ by 8 ordering the assault for filing a C.D.C.R. 602 grievance, appeal log No. #217864, Dated 06-01- 9 2022.” Dkt. No. 1 at 5. PBSP officer Sampson falsely accused Plaintiff of being involved in 10 fighting to cover up defendant Etzel’s misdeeds. Plaintiff reports that he exhausted his 11 administrative remedies with respect to this claim by filing a grievance on March 28, 2022. Dkt. 12 No. 1 at 6. Plaintiff has attached a declaration stating that he is in imminent danger of serious 13 physical injury because defendant Etzel verbally threatened him and ordered an assault on him 14 from March 28, 2022 to May 27, 2022. Dkt. No. 1-1 at 2. 15 The complaint alleges the following legal claims. On an unspecified date, defendant Etzel 16 used excessive force on Plaintiff by punching and hitting Plaintiff in the face, in retaliation for 17 Plaintiff reporting the damaged property. Defendant Etzel also retaliated against Plaintiff for 18 Plaintiff’s use of the grievance system by threatening Plaintiff with physical violence. Defendant 19 Etzel failed to reimburse Plaintiff for the lost and/or damaged property and encouraged other 20 inmates to attack Plaintiff on May 27, 2022, in violation of the Eighth Amendment and in 21 retaliation for Plaintiff’s exercise of his First Amendment rights. 22 C. Analysis 23 Plaintiff’s allegations do not support an inference that he faced imminent danger of serious 24 physical injury from defendant Etzel on June 19, 2022, the date Plaintiff provided the complaint to 25 prison authorities for mailing. ECF No. 1-2 at 4. The alleged physical assault took place on May 26 27, 2022, and there are no allegations of threats of physical violence or instances of physical 27 violence after May 27, 2022. Furthermore, Plaintiff’s allegations are inconsistent and vague. 1 grievance dated June 1, 2022, after the assault took place. Plaintiffs claim that defendant Etzel 2 || was the cause of the May 27, 2022 attack is based on the conclusory statement that defendant 3 || Etzel used “anonymous resources.” Plaintiffs claim of imminent danger of serious physical 4 || injury from defendant Etzel is speculative. See Andrews v. Cervantes, 493 F.3d 1047, 1057 n.11 5 (9th Cir. 2007) (“assertions of imminent danger of less obviously injurious practices may be 6 || rejected as overly speculative or fanciful”). Accordingly, within twenty-eight (28) days of the 7 date of this order, Plaintiff shall show cause why his request for leave to proceed in forma 8 || pauperis should not be denied pursuant to the three strikes provision set forth in 28 U.S.C. § 1915. 9 CONCLUSION 10 For the reasons set forth above, the Court orders Plaintiff to, within twenty-eight (28) 11 days of the date of this order, show cause why his request for leave to proceed in forma pauperis 12 should not be denied pursuant to the three strikes provision set forth in 28 U.S.C. § 1915. Failure 5 13 to respond in accordance with this order will result in dismissal of this action without further 14 || notice to Plaintiff pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to 3 15 comply with a court order. a 16 IT IS SO ORDERED. 17 || Dated: 7/6/2022 18 Almpurd 5 Mbp.

HAYWOOD S. GILLIAM, JR.

19 United States District Judge 20 21 22 23 24 25 26 27 28