(PC) Trujillo Cruz v. Smith

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GUILLERMO TRUJILLO CRUZ, No. 2:19-cv-1027 JAM CKD P 12 Plaintiff, 13 v. ORDER B. SMITH, et al., 15 Defendants.

17 Plaintiff is a California prisoner proceeding pro se with a civil action. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

19 Plaintiff has requested leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) reads as follows: 21 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 22 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury.

25 A review of records from this court reveals that, while plaintiff was incarcerated and before this action was filed, the following actions brought by plaintiff were dismissed for failure to state a claim upon which relief may be granted: Trujillo v. Sherman, No. 1:14-cv-1401 BAM; //// | Trujillo v. Ruiz, No. 1:14-cv-0975 SAB; and Cruz v. Gomez, No. 1:15-cv-0859 EPG.! There is | no allegation by plaintiff that he is under imminent danger of serious physical injury.

3 In light of the foregoing, plaintiffs request for leave to proceed in forma pauperis will be | denied. Plaintiff will be granted fourteen days within which to pay the filing fee for this action.

5 | Failure to pay the filing fee within fourteen days will result in a recommendation that this action | be dismissed.

7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 16) is denied.

9 2. Plaintiff is granted fourteen days within which to pay the $400 filing fee for this action.

10 | Failure to pay the filing fee within fourteen days will result in a recommendation that this action | be dismissed.

12 | Dated: September 3, 2019 ff a f/f it / a i, Candfe Kh. ee ee ee 13 CAROLYN K. DELANEY : 14 UNITED STATES MAGISTRATE JUDGE | 1 cruz1027.3k The court notes that all three of these actions were dismissed by magistrate judges where only | Plaintiff consented to the magistrate judge. The Ninth Circuit recently held although there is no longer a “dispute that a magistrate judge lacks the authority to dismiss a case unless all parties || have consented to proceed before the magistrate judge,” a prisoner plaintiff “cannot escape” the 28 U.S.C. § 1915(g) consequences of such a dismissal “through an untimely collateral attack.”

28 | Hoffman v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019).