Cruz v. Kumbat

Background

Guillermo Trujillo Cruz, an incarcerated plaintiff proceeding without a lawyer, filed this civil-rights action under 42 U.S.C. § 1983. The court had granted him permission to proceed without paying the filing fee. In an earlier screening order, the court found that allegations that Kumbat sexually harassed Cruz and later deliberately spread a rumor that Kumbat had been sexually harassed by Cruz stated potentially valid Eighth Amendment claims.

The court then learned that other federal courts had previously denied Cruz permission to proceed without paying fees under 28 U.S.C. § 1915(g), the Prison Litigation Reform Act's three-strikes provision. That provision generally bars an incarcerated person from proceeding without paying fees after three or more qualifying cases or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the person faces imminent danger of serious physical injury.

Prior strikes

The court took judicial notice of five prior proceedings involving Cruz and reviewed whether their dispositions qualified as strikes. It concluded that at least three earlier proceedings counted. The court specifically determined that the first four listed actions constituted strikes: three were dismissed for failure to state a claim, and one was dismissed because the failure to exhaust administrative remedies was clear from the complaint. The court also addressed the effect of earlier dismissals by magistrate judges and concluded that those dismissals could still have consequences under the three-strikes provision.

Imminent danger

The court found that the alleged constitutional violation occurred on July 19, 2018, more than a year before Cruz filed this action. It further found that Cruz had not alleged, and that the complaint did not plausibly show, that he was under imminent danger of serious physical injury.

Order

The court ordered Cruz to show cause within 28 days why his permission to proceed without paying filing fees should not be revoked under § 1915(g). The court did not revoke that status in this order. It stated that failure to respond in accordance with the order would result in dismissal of the action without further notice for failure to comply with a court order.