McElroy v. CDCR, et al.

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/27/2017 DENYING Motion to Proceed in Forma Pauperis. Plaintiff shall pay the $400 filing fee no later than 14 days from the date of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN McELROY, 12 13 14 No. 2:17-cv-0485 WBS CKD P Plaintiff, v. ORDER CDCR, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983 along with an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 19 1915(a). 20 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement 21 and prosecution of any suit without prepayment of fees by a person who submits an affidavit 22 indicating that the person is unable to pay such fees. However, 23 24 25 26 27 28 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). 1 1 Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28 2 U.S.C. § 1915(g). See McElroy v. Asad, 2:15-cv-0904 JAM EFB (E.D. Cal.) (order identifying 3 plaintiff as three-strikes litigant on September 24, 2015).1 The court takes judicial notice of the 4 four cases identified therein as § 1915(g) strikes, all of which were dismissed for failure to state a 5 claim. All were dismissed well prior to the filing of the instant action and constitute strikes under 6 § 1915(g). 7 The imminent danger applies only if it is clear that the danger existed when the complaint 8 was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent 9 danger that are overly speculative or fanciful may be rejected. Id. at 1057, n.11. Having 10 reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged “imminent 11 danger of serious physical injury” under § 1915(g). 12 13 In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this action; otherwise, it will be dismissed. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion to proceed in forma pauperis is denied; and 16 2. Plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this 17 order. Failure to comply with this order will result in dismissal of this action. 18 Dated: April 27, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 2 / mcel0485.threestrikes 25 26 27 28 1 See also McElroy v. Turner, No. 2:12-cv-1182 CMK (E.D. Cal.) (order designating plaintiff as a three strikes litigant on June 28, 2012). 2

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