McElroy v. Does et al

Filing 6

ORDER 1) Denying 4 Motion to Proceed in forma pauperis as barred by 28 U.S.C. § 1915(g) and 2) Dismissing Civil Action without prejudice for failure to pay filing fee required by 28 U.S.C. § 1914(a). The Court DENIES Plaintiff's Mot ion to Proceed IFP [ECF No. 4] as barred by 28 U.S.C. § 1915(g); DISMISSES this civil action without prejudice based on Plaintiff's failure to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); CERTIFIES that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); DIRECTS the Clerk of Court to close the file. Signed by Judge Dana M. Sabraw on 10/31/2017. (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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E.J. McELROY, aka Latwhan McElroy,
aka Jabbari McElroy, aka Jarbor McElroy,
CDCR #P-71922,

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Case No.: 3:17-cv-01593-DMS-WVG
ORDER

Plaintiff,

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1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 4]

vs.

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RN/DA DOES & Supervisors, et al.,

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AND

Defendants.

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(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)

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E.J. McELROY, aka Lathan McElroy, Jabbarri McElroy, and Jarbor McElroy

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(“Plaintiff”), currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”)

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in San Diego, California, and proceeding pro se, has filed this civil rights action pursuant

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to 42 U.S.C. § 1983.

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Plaintiff, who claims to require mobility modifications and rehabilitative services

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related to his “back issues,” contends a host of unidentified RJD “Medical

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Administrators,” “Supervisors,” “Release & Receiving” (“R&R”) officials, and prison
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librarians have, since his transfer there on or about July 28, 2017, violated his rights to

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due process, equal protection, access to the court, and to be free from cruel and unusual

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punishment. Specifically, Plaintiff claims Defendants failed to promptly process 7 or 8

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boxes or bags of his legal property and “medical hygienic items,” failed to provide him

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with a sufficient “intake kit” and instructions for using the law library, failed to assign

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him to a “medical cell” that would guarantee him a “personal means of storage,” and

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failed to provide “medicinal[ly] therapeutic meals.” Plaintiff further alleges Defendants

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have denied his access to “enhanced privilege programs,” including the use of

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microwaves for popcorn, “compatible” television sets,” “crush[ed]/bag ice throughout the

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day” when temperatures reach over 88⁰ F, and a “personal resistance band” for his use

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outside RJD’s “therapeutic center.” See ECF No. 3 at 1-18.

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Plaintiff did not pay the civil filing fee required to commence a civil action when

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he filed suit; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 4).

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I.

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Motion to Proceed IFP
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,

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“face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

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of a filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

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(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP:

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. . . if [a] 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 can be granted, unless the prisoner is under
imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

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suits may entirely be barred from IFP status under the three strikes rule[.]”). The

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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

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before and after the statute’s effective date.” Id. at 1311.

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the

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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g)

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from pursuing any other IFP civil action or appeal in federal court unless he alleges he is

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facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes,

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493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a

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plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’

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at the time of filing.”).

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II.

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Discussion
As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint, and

has ascertained that it does not contain any “plausible allegations” to suggest he “faced
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‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at

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1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiff seeks to sue

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various unnamed RJD prison officials as a group for allegedly failing to quickly or

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sufficiently provide him access to the amenities and rehabilitative programs he claims his

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limited mobility requires for the 2-week period immediately following his transfer there

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on or about July 28, 2017. While Plaintiff is dissatisfied with the speed at which he has

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been processed, classified, and accommodated at RJD, none of his allegations plausibly

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suggest he faced any “imminent danger of serious physical injury” at the time of filing.

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See 28 U.S.C. § 1915(g); Ellington v. Clark, No. 1:09-CV-02141-AWI, 2011 WL

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3500970, at *5 (E.D. Cal. Aug. 8, 2011) (finding prisoner’s pre-existing medical

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conditions and his claimed denial of ambulatory devices did not “rise to the level of

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imminent danger”); report and recommendation adopted, No. 1:09-CV-02141-AWI,

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2011 WL 6780910 (E.D. Cal. Dec. 27, 2011); Byrd v. Dir. of Corr., No. 3:15-CV-2339-

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GPC-KSC, 2016 WL 773229, at *2 (S.D. Cal. Feb. 29, 2016) (finding prisoner’s

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allegations of having been denied access to court and discriminated against based on race

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and religion insufficient to invoke § 1915(g)’s imminent danger exception); Weaver v.

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Mailroom Staff, No. 1:06-CV-01439-AWI-LJO-P, 2006 WL 3028411, at *1 (E.D. Cal.

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Oct. 24, 2006) (finding prisoner’s allegations that mailroom staff refused to pick up mail

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insufficient to satisfy § 1915(g)’s imminent danger exception).

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And while Defendants typically carry the burden to show that a prisoner is not

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entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

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docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

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under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,
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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Therefore, this Court takes judicial notice that Plaintiff, E.J. McElroy, also known

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as Latwahn McElroy, Jabbari McElroy, and/or Jarbor McElroy, and identified as CDCR

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Inmate #P-71922, has had at least five prior prisoner civil actions dismissed on the

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grounds that they were frivolous, malicious, or failed to state a claim upon which relief

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may be granted.

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They are:

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1)

McElroy v. Gebbmedin, et al., Civil Case No. 1:08-cv-00124-LJO-

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GSA (E.D. Cal. Sept. 2, 2008) (Order dismissing complaint for failure to state a

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claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) with leave to

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amend) (ECF No. 9); (E.D. Cal. Nov. 4, 2008) (Findings and Recommendations

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[“F&R’s”)] to Dismiss Civil Action for Failure to State a Claim) (ECF No. 10);

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(E.D. Cal. Dec. 11, 2008) (Order Adopting F&Rs and Dismissing Civil Action

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with Prejudice for Failure to State a Claim) (ECF No. 11)1 (strike one);

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2)

McElroy v. Schultz, et al., Civil Case No. 1:08-cv-00179-OWW-MJS

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(E.D. Cal. Feb. 25, 2010) (Order Dismissing First Amended Complaint for failure

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to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(ii) and § 1915A(b)(1), (2) with

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leave to amend) (ECF No. 21); (E.D. Cal. March 31, 2010) (F&Rs to Dismiss Civil

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Action for Failure to State a Claim) (ECF No. 22); (E.D. Cal. April 30, 2010)

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(Order re F&Rs and dismissing civil action for failure to state a claim upon which

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“[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a
claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended
complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 863 F.3d
1131, 1143 (9th Cir. 2017).
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relief can be granted) (ECF No. 24) (strike two);

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3)

McElroy v. Cal. Dept. of Corr., et al., Civil Case No. 2:08-cv-00733-

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HWG (E.D. Cal. April 16, 2009) (Order dismissing complaint for failing to state a

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claim and with leave to amend pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No.

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10); (June 3, 2009) (Minute Order dismissing civil action for failure to state a

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claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and §1915A(b)(1)) (ECF No. 11)

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(strike three);

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4)

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McElroy v. Institutional Head Ground, et al., Civil Case No. 1:13-cv-

00483-MJS (E.D. Cal. Nov. 1, 2013) (Order dismissing civil action for “failure to

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state any claim under § 1983” pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1), (2)) (ECF No. 21) (strike four); and

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5)

McElroy v. CDC, et al., Civil case No. 2:15-cv-02271-KJM-EFB

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(E.D. Cal. Feb. 6, 2017) (Order dismissing complaint for failing to “state a

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cognizable claim for relief” pursuant to 28 U.S.C. § 1915A) (ECF No. 12); (E.D.

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Cal. April 3, 2017) (F&Rs to dismiss for failure to amend) (ECF No. 19); (June 21,

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2017) (Order adopting F&Rs and dismissing civil action) (ECF No. 20) (strike

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Accordingly, because Plaintiff has, while incarcerated, accumulated more than
three “strikes” pursuant to § 1915(g), and he fails to make a “plausible allegation” that he

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Plaintiff has also been barred from proceeding IFP pursuant to 28 U.S.C. § 1915(g) in
the Eastern District of California, see McElroy v. Asad, et al., Civil Case No. 2:15-cv00904-JAM-EFB (Sept. 24, 2015) (Order denying IFP pursuant to 28 U.S.C. § 1915(g))
(ECF No. 12); McElroy v. CDCR, et al., Civil Case No. 2:17-cv-00485-WBS-CKD (April
27, 2017) (Order denying IFP as barred by 28 U.S.C. § 1915(g), and had his IFP status
revoked in the Northern District as well. See McElroy v. Ikegbu, et al., Civil Case No. 5:15cv-01599-EJD (N.D. Cal. Feb. 22, 2016) (Order granting Defendants’ Motion to Revoke
Plaintiff’s IFP Status pursuant to 28 U.S.C. § 1915(g)) (ECF No. 33); McElroy v. Muniz,
et al., Civil case No. 5:15-cv-00042-EJB (N.D. Cal. May 26, 2016) (Order granting
Defendants’ Motion to Revoke Plaintiff’s IFP status pursuant to 28 U.S.C. § 1915(g)) (ECF
No. 118).
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faced imminent danger of serious physical injury at the time he filed his Complaint, he is

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not entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d

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at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

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prisoners with a history of abusing the legal system from continuing to abuse it while

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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

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III.

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Conclusion and Order
For the reasons set forth above, the Court:
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DENIES Plaintiff’s Motion to Proceed IFP [ECF No. 4] as barred by 28

U.S.C. § 1915(g);
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DISMISSES this civil action without prejudice based on Plaintiff’s failure

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to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C.

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§ 1914(a);

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3)

CERTIFIES that an IFP appeal from this Order would be frivolous and

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therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

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appeal would not be frivolous); and

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4)

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IT IS SO ORDERED.

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DIRECTS the Clerk of Court to close the file.

Dated: October 31, 2017

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