Cruz v. Ortiz

Background

Guillermo Trujillo Cruz, an inmate at Pelican Bay State Prison, filed this civil-rights action without a lawyer under 42 U.S.C. § 1983, a law that permits certain claims against government officials for violating constitutional rights. He asked to proceed in forma pauperis, meaning without paying the court’s filing fee in advance.

The complaint alleged that on December 2, 2019, Pelican Bay officer A. Ortiz sexually harassed Cruz during a clothed body search. Cruz also alleged that prison officials and Ortiz continuously threatened him with physical injury. The complaint acknowledged that he had not pursued this issue through the California Department of Corrections and Rehabilitation’s grievance system, but asserted that threats had made that process unavailable.

Three-strikes analysis

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner has had three or more earlier federal actions dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner was under an imminent danger of serious physical injury. The court may count qualifying dismissals of both lawsuits and appeals.

The court took judicial notice of five earlier proceedings involving Cruz and concluded that they counted as strikes. The court described three earlier actions as dismissed for failure to state a claim, another as dismissed because failure to exhaust administrative remedies was clear from the complaint, and an appeal as dismissed as frivolous. The court also concluded that challenges to the first four dismissals were barred by controlling Ninth Circuit precedent because Cruz could not make an untimely collateral challenge to those dismissals.

Imminent-danger allegation

The court concluded that the complaint described a past constitutional violation and resulting emotional suffering. It found that Cruz’s conclusory statements repeating the statutory standard did not plausibly allege that he faced an imminent danger of serious physical injury on December 27, 2019, when he filed the complaint.

Order

The court ordered Cruz to show cause within 28 days why his request to proceed without paying the filing fee should not be denied under 28 U.S.C. § 1915’s three-strikes provision. The order did not yet deny that request or dismiss the action. It warned that failure to respond as ordered would result in dismissal of the action without further notice under Federal Rule of Civil Procedure 41(b), which permits dismissal for failure to comply with a court order.