Opinion
Case No.: 1:18-cv-01641-LJO-SAB (PC)
12-13-2018
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. B. BAKER., Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DIRECTING PLAINTIFF TO SUBMIT THE $400.00 FILING FEE FOR THIS ACTION WITHIN THIRTY DAYS OR THE ACTION WILL BE DISMISSED [ECF Nos. 2, 3, 4, 5, 6]
Plaintiff Guillermo Trujillo Cruz is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
On November 30, 2018, the Magistrate Judge issued Findings and Recommendations recommending that Plaintiff's application to proceed in forma pauperis be denied because suffered three or more strikes under 28 U.S.C. § 1915(g), and the complaint allegations did not meet the imminent danger of serious physical injury. (ECF No. 5.) The Findings and Recommendations were served on Plaintiff and contained notice that objections were to be filed within twenty-one (21) days. (Id.) Plaintiff filed objections on December 12, 2018. (ECF No. 6.)
In his objections, Plaintiff continues to argue that he is in imminent danger of serious physical harm based on past incidents of alleged excessive force by correctional officer B. Baker at Kern Valley State Prison. (ECF No. 6.) Plaintiff's objections are without merit. As stated in the Findings and Recommendations past incidents of alleged excessive force do not meet the imminent physical danger exception under section 1915(g). In addition, Plaintiff is currently (as well as at the time of filing) incarcerated at Pelican Bay State Prison, not Kern Valley State Prison where officer Baker is employed. Accordingly, Plaintiff has not and cannot meet the imminent physical danger exception under section 1915(g).
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported by the record and proper analysis
Accordingly, it is HEREBY ORDERED that:
1. The Finding and Recommendations issued on November 30, 2018, are adopted in full;
2. Plaintiff's application to proceed in forma pauperis is DENIED; and
3. Within thirty (30) days from the date of service of this action, Plaintiff shall pay the $400.00 filing fee or this action will be dismissed. IT IS SO ORDERED.
Dated: December 13 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE