McElroy v. CHCF et al

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/22/19 ORDERING the Clerk of the Court shall randomly assign a United States District Judge to this action. Also, RECOMMENDING that plaintiff's application s for leave to proceed in forma pauperis 5 , 12 , 13 be denied; and plaintiff be directed to pay the full $400.00 filing fee for this action within 21 days of the district judge's adoption of these findings and recommendations. Motions 5 , 12 and 13 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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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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Plaintiff,

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No. 2:18-cv-455 EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CHCF, et al.,

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Defendants.

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Plaintiff,1 a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983, has requested leave to proceed in forma pauperis. ECF Nos. 5, 12 & 13. 28

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U.S.C. § 1915 provides that:

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In no event shall a prisoner bring a civil action . . . [in forma pauperis] 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.

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28 U.S.C. § 1915(g). Court records indicate that plaintiff has previously had more than

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three cases dismissed as frivolous, malicious, or for failure to state a claim upon which relief

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may be granted. See (1) McElroy v. Gebbmedin, No. 1:08-cv-0124-LJO-GSA (E.D. Cal.

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Dec. 11, 2008) (order dismissing action for failure to state a claim); (2) McElroy v. Schultz,

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Plaintiff has previously filed cases under the name “E.J. McElroy.”
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No. 1:08-cv-0179-OWW-MJS (E.D. Cal. Apr. 30, 2010) (order dismissing action for failure

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to state a claim); (3) McElroy v. CDC, 2:08-cv-0733-HWG (E.D. Cal. June 3, 2009) (order

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dismissing action for failure to state a claim); and (4) McElroy v. Ground, No. 1:13-cv-483-

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MJS (E.D. Cal. Nov. 1, 2013) (order dismissing action for failure to state a claim). See also

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McElroy v. Turner, No. 2:12-cv-1182-CMK (E.D. Cal. Aug. 13, 2012) (order designating

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plaintiff a three-strikes litigant pursuant to § 1915(g)).

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Plaintiff would still be entitled to proceed in forma pauperis if his complaint indicated that

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he was in imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Andrews v.

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Cervantes, 493 F.3d 1047, 1049-1050 (9th Cir. 2007). His allegations provide no such indication.

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As best the court can discern, plaintiff alleges that various defendants at the California Healthcare

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Facility have failed to “return authentic medical paperwork” which pertains to him. ECF No. 11

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at 4. Plaintiff also appears to allege that, on some unspecified date, unnamed parties prevented

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him from obtaining adequate dental and/or orthodontic care. Id. at 8. These claims are

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interspersed amongst other statements that are incomprehensible. Id. at 7 (“[Defendants] has (sic)

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nevertheless given into what will define a[n] ‘existing indebtedness’ liable to that obvious or

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‘careless to the fact’ . . .”).

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In light of the foregoing, plaintiff’s applications to proceed in forma pauperis should be

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denied. Plaintiff should be granted twenty-one days to pay the filing fee for this action. If he fails

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to do so, this action should be dismissed.

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Accordingly, it is ORDERED that the Clerk of Court shall randomly assign a United
States District Judge to this action.

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Further, it is RECOMMENDED that:

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1. Plaintiff’s applications for leave to proceed in forma pauperis (ECF Nos. 5, 12 & 13)

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be denied; and

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2. Plaintiff be directed to pay the full $400 filing fee for this action within twenty-one

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days of the district judge’s adoption of these findings and recommendations; failure to comply

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with this directive should result in the dismissal of this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 22, 2019.

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