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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY,

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No. 2:17-cv-0485 WBS CKD P

Plaintiff,
v.

ORDER

CDCR, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983 along with an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a),

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1915(a).

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28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

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and prosecution of any suit without prepayment of fees by a person who submits an affidavit

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indicating that the person is unable to pay such fees. However,

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[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).
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Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28

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U.S.C. § 1915(g). See McElroy v. Asad, 2:15-cv-0904 JAM EFB (E.D. Cal.) (order identifying

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plaintiff as three-strikes litigant on September 24, 2015).1 The court takes judicial notice of the

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four cases identified therein as § 1915(g) strikes, all of which were dismissed for failure to state a

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claim. All were dismissed well prior to the filing of the instant action and constitute strikes under

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§ 1915(g).

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The imminent danger applies only if it is clear that the danger existed when the complaint

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was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent

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danger that are overly speculative or fanciful may be rejected. Id. at 1057, n.11. Having

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reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged “imminent

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danger of serious physical injury” under § 1915(g).

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In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this
action; otherwise, it will be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis is denied; and

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2. Plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this

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order. Failure to comply with this order will result in dismissal of this action.

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Dated: April 27, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / mcel0485.threestrikes

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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).
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