Cruz v. Gutierrez

Background

Guillermo Trujillo Cruz, an incarcerated plaintiff proceeding without a lawyer, filed this civil-rights action under 42 U.S.C. § 1983. The court initially allowed him to proceed without paying the filing fee upfront. The court later learned that earlier cases brought by Cruz had been dismissed in ways that could count as “strikes” under the Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g).

That provision generally prevents a prisoner who has had three or more qualifying cases dismissed as frivolous, malicious, or failing to state a claim from proceeding without paying the filing fee, unless the prisoner was in imminent danger of serious physical injury when the complaint was filed.

Prior strikes

The court took notice of at least three prior cases that qualified as strikes. Cruz did not dispute that those dismissals counted. Instead, he argued that the imminent-danger exception applied.

Imminent-danger argument

Cruz’s complaint alleged that, while housed at Pelican Bay State Prison, Gutierrez sexually harassed him during a clothed body search in retaliation for grievances about employee misconduct. In response to the court’s order to show cause, Cruz alleged that Gutierrez’s coworkers had verbally threatened him with physical harm because he filed prison grievances. He also alleged that prison officials had conspired with Gutierrez to have him touched inappropriately, with the intent to harm, offend, and humiliate him.

The court explained that imminent danger is evaluated when the complaint is filed. It concluded that Cruz’s allegations did not plausibly establish imminent danger of serious physical injury at that time. The alleged threats were unspecified as to when they occurred, and the alleged conspiracy was described only in general terms. The court therefore found the imminent-danger argument speculative.

Ruling and effect

The court revoked Cruz’s permission to proceed without paying the filing fee under 28 U.S.C. § 1915(g). It ordered him to pay the $400 filing and administrative fee in full within 28 days of the order. The court stated that if the fee was not received by then, it would dismiss the action without prejudice to Cruz’s refiling upon payment of the full fee. The order addressed Cruz’s ability to proceed without prepaying the fee; it did not decide the merits of his civil-rights allegations.