McElroy v. McLean

Opinion

LATWAHN J. MCELROY, Case No. 20-cv-01900-PJH

Plaintiff, ORDER DENYING SECOND MOTION v. FOR A TEMPORARY RESTRAINING ORDER MAUREEN MCLEAN, et al., Re: Dkt. No. 12 Defendants.

Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983 and an application to proceed in forma pauperis. The court previously ordered plaintiff to show cause why this case should not be deemed three strikes barred and the application to proceed in forma pauperis denied pursuant to 28 U.S.C. § 1915(g). Plaintiff filed a motion for a temporary restraining order but failed to address the order to show cause. The court denied the motion for a temporary restraining order and denied the motion to proceed in forma pauperis and ordered plaintiff to pay the full filing fee or the case would be dismissed. Docket No. 11 Plaintiff has not paid the full filing fee but has filed a second motion for a temporary restraining order and had presented some arguments contending that he is in imminent danger of serious physical injury and should be permitted to proceed pursuant to 28 U.S.C. § 1915(g). For the same reasons set forth in the prior order the second motion for a temporary restraining order is denied. In the prior order, the court reviewed the complaint and other filings and determined that plaintiff was not in serious physical danger. The court noted that the plain language of the imminent danger clause in § 1915(g) indicates that "imminent Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff filed the complaint on March 11, 2020, while at RJ Donovan Correctional Facility. The allegations concern events that occurred at Pelican Bay State Prison in 2015. Plaintiff is now being held at North Kern State Prison. Plaintiff has failed to demonstrate that at the time of filing the complaint that he was in imminent danger of serious physical injury. His conclusory statements with little support are insufficient. For all these reasons plaintiff’s motion (Docket No. 12) is DENIED. To proceed with this action, plaintiff must pay the full filing fee, four hundred dollars ($400), by July 15, 2020, or the case will be dismissed. Dated: July 1, 2020 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge