Cruz v. Ford

Background

Guillermo Trujillo Cruz, an inmate at Pelican Bay State Prison, filed this civil-rights action under 42 U.S.C. § 1983 without a lawyer. The court had previously found that his allegation that D. Ford sexually harassed him on October 29, 2019 stated a legally recognizable Eighth Amendment claim. The court dismissed his First Amendment retaliation claim with leave to amend and granted him permission to proceed without paying the filing fee.

The court later learned that Cruz had been denied permission to proceed without paying fees in earlier proceedings under the Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without paying fees after three or more earlier cases were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury.

Prior strikes

The court took judicial notice of five prior related proceedings and reviewed whether their dismissals qualified as strikes. It concluded that the first four identified actions constituted strikes. Those proceedings had been dismissed for failure to state a claim or because failure to exhaust administrative remedies was clear from the complaint. The court also stated that challenges to the strike consequences of those dismissals were precluded by Ninth Circuit authority because the dismissals were no longer pending.

Imminent-danger exception

Cruz argued that he continued to face imminent danger from offensive and intentional non-consensual touching by Ford, and that grievances attached to his complaint supported that argument. The court concluded that the touching described did not constitute serious physical injury. It also found that the referenced incidents occurred before the alleged October 29, 2019 constitutional violation and nearly eleven months before the complaint was filed. The court determined that Cruz’s additional allegation of an ongoing pattern of battery by others was conclusory and did not plausibly show an imminent risk of serious physical injury.

Disposition

The court ordered Cruz to show cause within 28 days why his permission to proceed without paying the filing fee should not be revoked under § 1915(g). The order did not itself revoke that permission. The court stated that failure to respond as ordered would result in dismissal for failure to comply with a court order. Judge Haywood S. Gilliam, Jr. signed the order.