McElroy v. McLean

Opinion

LATWAHN J. MCELROY, Case No. 20-cv-01900-PJH Plaintiff, ORDER OF DISMISSAL v. MAUREEN MCLEAN, et al., Defendants. Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The court denied plaintiff’s motion to proceed in forma pauperis after finding that he was three strikes barred pursuant to 28 U.S.C. § 1915(g). Plaintiff was provided an opportunity to pay the full filing fee or the case would be dismissed. The time to pay the filing fee has passed and he has not paid. Plaintiff has filed an additional motion and argues that he is in imminent danger of serious physical injury and should be permitted to proceed pursuant to 28 U.S.C. § 1915(g). The plain language of the imminent danger clause in § 1915(g) indicates that "imminent danger" is to be assessed at the time of filing of the complaint. See Andrews v. 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 and later. Plaintiff is now being held at North Kern State Prison. He has not shown that he was in imminent danger when he filed the complaint. This action is DISMISSED for failure to pay the filing fee. The clerk shall close this case. Dated: August 11, 2020 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge