(PC) Mcelroy v. Gates ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EJ MCELROY, Case No. 1:21-cv-00053-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF 11 v. BE REQUIRED TO PAY THE $402.00 FILING FEE IN FULL 12 S. GATES, et al., OBJECTIONS, IF ANY, DUE WITHIN 13 Defendants. FOURTEEN (14) DAYS 14 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 15 16 I. BACKGROUND 17 EJ McElroy (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 18 action. Plaintiff filed the complaint commencing this action on January 14, 2021. (ECF No. 19 1). Plaintiff did not pay the filing fee or file an application to proceed in forma pauperis. 20 As the Court finds that Plaintiff had at least three “strikes” prior to filing the action and 21 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 22 action, the Court will recommend that Plaintiff be required to pay the $402 filing fee in full if 23 he wants to proceed with the action. 24 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 25 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 26 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 27 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 28 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 1 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 2 under imminent danger of serious physical injury.” 3 In determining whether a case counts as a “strike,” “the reviewing court looks to the 4 dismissing court’s action and the reasons underlying it…. This means that the procedural 5 mechanism or Rule by which the dismissal is accomplished, while informative, is not 6 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 7 See also O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (“no ‘particular formalities are 8 necessary for an order that serves as the basis of [an involuntary] dismissal.’”) (quoting Yourish 9 v. Cal. Amplifier, 191 F.3d 983, 986-87 (9th Cir. 1999)) (alteration in original). 10 III. ANALYSIS 11 a. Strikes 12 Plaintiff initiated this action on January 14, 2021. (ECF No. 1). The Court finds that, 13 prior to this date, Plaintiff had at least three cases dismissed that count as “strikes.” 14 The Court takes judicial notice of the following cases, each of which counts as a 15 “strike”: 16 (1) McElroy v. Gebbmedin, No. 1:08-cv-0124-LJO-GSA (E.D. Cal. Dec. 11, 2008) 17 (order dismissing action for failure to state a claim); 18 (2) McElroy v. Schultz, No. 1:08-cv-0179-OWW-MJS (E.D. Cal. Apr. 30, 2010) (order 19 dismissing action for failure to state a claim); 20 (3) McElroy v. CDC, 2:08-cv-0733-HWG (E.D. Cal. June 3, 2009) (order dismissing 21 action for failure to state a claim); and 22 (4) McElroy v. Ground, No. 1:13-cv-483-MJS (E.D. Cal. Nov. 1, 2013) (order 23 dismissing action for failure to state a claim).1 24 The Court also notes that Plaintiff has been found on multiple occasions to have 25 incurred three or more strikes. See, e.g., McElroy v. Turner, No. 2:12-cv-1182-CMK (E.D. Cal. 26 27 1 Some actions were filed by Latwahn McElroy. However, that McElroy has the same CDCR 28 number as Plaintiff here. Moreover, the caption in case number 2:18-cv-00455-TLN-EFB in this district, which found Plaintiff had accrued three strikes, notes that Plaintiff Latwahn McElroy is also known as E.J. McElroy. 1 Aug. 13, 2012) (order designating plaintiff a three strikes litigant pursuant to § 1915(g)); 2 McElroy v. CDCR,No. 2:17-cv-0485-WBS-CKD (P) (E.D. Cal. Apr. 27, 2017) (same and 3 denying motion to proceed in forma pauperis); McElroy v. CHCF, No. 2:18-cv-00455-TLN- 4 EFB (E.D. Cal. Sept. 4, 2019) (dismissing action after finding plaintiff accrued three strikes 5 and had not paid filing fee). 6 Based on the foregoing, the Court finds that Plaintiff had at least three “strikes” prior to 7 filing this action. 8 b. Imminent Danger 9 As Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is precluded 10 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 11 imminent danger of serious physical injury. The availability of the imminent danger exception 12 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 13 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 14 of serious physical injury must be a real, present threat, not merely speculative or 15 hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To 16 meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing 17 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 18 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague 19 and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 20 F.3d 1226, 1231-32 (10th Cir. 1998). See also Martin, 319 F.3d at 1050 (“[C]onclusory 21 assertions” are “insufficient to invoke the exception to § 1915(g)….”). The “imminent danger” 22 exception is available “for genuine emergencies,” where “time is pressing” and “a threat … is 23 real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 24 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 25 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 26 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 27 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 28 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 1 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 2 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 3 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 4 298-99 (2d Cir. 2009)). 5 Because Plaintiff is pro se, in making the imminent danger determination the Court 6 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 7 Plaintiff’s complaint is disorganized, at times difficult to understand, and appears to 8 relate to the due process he received in connection with a disability complaint. It also 9 references threats to charge Plaintiff with some criminal offense, and false reports. Plaintiff 10 also refers repeatedly to a “flood gate” and pressurizers. Given the lack of clarity, the fact that 11 many of the allegations concern due process and potential criminal adjudications, and the lack 12 of clear allegations concerning physical injury to Plaintiff, the Court finds that Plaintiff has not 13 alleged he is in imminent danger of serious physical injury. 14 As Plaintiff is a “three-striker” and does not appear to have been in imminent danger 15 when he filed this action, the Court will recommend that Plaintiff be required to pay the $402 16 filing fee in full if he wants to proceed with the action. 17 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 18 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 19 action. 20 Accordingly, it is HEREBY RECOMMENDED that: 21 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff not be allowed proceed in forma pauperis 22 in this action; and 23 2. Plaintiff be directed to pay the $402.00 filing fee in full if he wants to proceed with 24 this action. 25 These findings and recommendations will be submitted to the United States district 26 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 27 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 28 file written objections with the Court. The document should be captioned “Objections to 1 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 2 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 3 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 4 |) (9th Cir. 1991)). 5 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 6 || judge to this case. 4 IT IS SO ORDERED. > || Dated: _ January 14, 2021 [Je Fahey — 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28