McElroy v. McLean

• Court: District Court, N.D. California
• Decided: May 13, 2020
• Docket: 4:20-cv-01900
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LATWAHN J. MCELROY, Case No. 20-cv-01900-PJH

8 Plaintiff, ORDER TO SHOW CAUSE v. 9 Re: Dkt. No. 6 10 MAUREEN MCLEAN, et al., Defendants. 11

12 13 This is a civil rights case brought pro se by a prisoner. Plaintiff has also filed a 14 motion to proceed in forma pauperis. Court records indicate that plaintiff has filed at least 15 three prior cases that were dismissed as frivolous, malicious, or for failure to state a 16 claim. This would prevent plaintiff from proceeding in forma pauperis pursuant to 28 17 U.S.C. § 1915(g). 18 Legal Standard 19 The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996, 20 provides that a prisoner may not bring a civil action or appeal a civil judgment under 28 21 U.S.C. § 1915 “if the prisoner has, on three or more prior occasions, while incarcerated or 22 detained in any facility, brought an action or appeal in a court of the United States that 23 was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 24 which relief may be granted, unless the prisoner is under imminent danger of serious 25 physical injury.” 28 U.S.C. § 1915(g). The phrase “fails to state a claim on which relief 26 may be granted,” as used in § 1915(g), “parallels the language of Federal Rule of Civil 27 Procedure 12(b)(6).” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (internal 1 1915(g) if “it is of little weight or importance: having no basis in law or fact.” Id. (internal 2 quotation marks omitted). “A prior dismissal on a statutorily enumerated ground counts 3 as a strike even if the dismissal is the subject of an appeal.” Coleman v. Tollefson, 135 4 S. Ct. 1759, 1760 (2015). A dismissal under § 1915(g) means that a prisoner cannot 5 proceed with his action as a pauper under § 1915(g), but he still may pursue his claim if 6 he pays the full filing fee at the outset of the action. 7 Discussion 8 Plaintiff has been deemed three strikes barred in this district. See McElroy v. 9 Muniz, No. 15-0042 EJD (N.D. Cal. May 26, 2016). A review of plaintiff’s prior cases 10 confirms that he has at least three strikes: 1 11 In McElroy v. McLean, No. 19-5491 PJH (N.D. Cal. Dec. 2, 2019), the court 12 dismissed the complaint with leave to amend for failure to state a claim. Plaintiff failed to 13 file an amended complaint, so the action was dismissed for failure to state a claim. 14 In McElroy v. Institutional Head Ground, No. 13-0483 MJS (E.D. Cal. Nov. 1, 15 2013), the court dismissed plaintiff’s amended complaint without leave to amend for 16 failure to state a claim. 17 In McElroy v. Schultz, No. 08-0179 OWW MJS (E.D. Cal. April 30, 2010), the court 18 dismissed plaintiff’s amended complaint with leave to amend for failure to state a claim. 19 Plaintiff failed to file an amended complaint, so the action was dismissed for failure to 20 state a claim. 21 In McElroy v. Cal. Dep’t of Corr., No. 08-0733 HWG (E.D. Cal. April 16, 2009), the 22 court dismissed plaintiff’s complaint with leave to amend for failure to state claim. Plaintiff 23 failed to file an amended complaint, so the action was dismissed for failure to state a 24 claim. 25 In McElroy v. Gebbmedin, No. 08-0124 LJO GSA (E.D. Cal. Dec. 11, 2008), the 26 court dismissed the complaint with leave to amend for failure to state a claim. Plaintiff 27 1 failed to file an amended complaint, so the action was dismissed for failure to state a 2 claim. 3 The court finds that each of the above cases constitutes a strike, including when 4 plaintiff failed to file amended complaints. See Harris v. Mangum, 863 F.3d 1133, 1143 5 (9th Cir. 2017) (When the district court dismisses a complaint for failure to state a claim 6 and grants leave to amend, and the plaintiff then fails to file an amended complaint, the 7 dismissal counts as a strike under § 1915(g).) 8 Plaintiff shall show cause by June 19, 2020, why this case should not be deemed 9 three strikes barred and the application to proceed in forma pauperis denied. Failure to 10 reply will result in dismissal. Plaintiff’s request for a court order to provide for legal library 11 access (Docket No. 6) is DENIED.2 12 IT IS SO ORDERED. 13 Dated: May 13, 2020 14 15 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 16 United States District Judge 17 18 19 20 21 22

23 2 An injunction is binding only on parties to the action, their officers, agents, servants, employees and attorneys and those "in active concert or participation” with them. Fed. R. 24 Civ. P. 65(d). In order to enforce an injunction against an entity, the district court must have personal jurisdiction over that entity. In re Estate of Ferdinand Marcos, 94 F.3d 25 539, 545 (9th Cir. 1996). The court should not issue an injunction that it cannot enforce. Id. No defendant has been served yet in this action and the defendants are at Pelican 26 Bay State Prison and plaintiff is currently at North Kern State Prison. The court cannot order non-parties in this action. Plaintiff can show this order with the impending due date 27 to prison officials to obtain access to the law library. For general issues with legal