McElroy v. McLean ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 LATWAHN J. MCELROY, Case No. 20-cv-01900-PJH Plaintiff, 9 ORDER OF DISMISSAL v. 10 11 MAUREEN MCLEAN, et al., Defendants. 12 13 14 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 15 1983. The court denied plaintiff’s motion to proceed in forma pauperis after finding that 16 he was three strikes barred pursuant to 28 U.S.C. § 1915(g). Plaintiff was provided an 17 opportunity to pay the full filing fee or the case would be dismissed. The time to pay the 18 filing fee has passed and he has not paid. Plaintiff has filed an additional motion and 19 argues that he is in imminent danger of serious physical injury and should be permitted to 20 proceed pursuant to 28 U.S.C. § 1915(g). 21 The plain language of the imminent danger clause in § 1915(g) indicates that 22 "imminent danger" is to be assessed at the time of filing of the complaint. See Andrews 23 v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff filed the complaint on March 24 11, 2020, while at RJ Donovan Correctional Facility. The allegations concern events that 25 occurred at Pelican Bay State Prison in 2015 and later. Plaintiff is now being held at 26 North Kern State Prison. He has not shown that he was in imminent danger when he 27 filed the complaint. 1 This action is DISMISSED for failure to pay the filing fee. The clerk shall close this case. 2 IT IS SO ORDERED. 3 Dated: August 11, 2020 4 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27