(PC) Mcelroy v. George

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EIBON MCELROY, Case No. 1:24-cv-0982 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND DIRECTING 14 TAMMY CAMPBELL, et al., PLAINTIFF TO PAY THE FILING FEE WITHIN 30 DAYS 15 Defendants. (Docs. 6, 8, 11) 16 17 Eibon McElroy seeks to proceed in forma pauperis in this action, in which he alleges the 18 defendants violated his civil rights while housed at North Kern State Prison. (Docs. 1, 6.) The 19 magistrate judge identified four actions that qualified as strikes under 28 U.S.C. § 1915(g). (Doc. 20 8 at 2.) In addition, the magistrate judge found Plaintiff’s “allegations are insufficient to show that 21 there is a real and imminent threat to Plaintiff’s personal safety,” because Plaintiff challenges 22 aspects of medical care provided several years ago at a different prison. (Id. at 3.) Therefore, the 23 magistrate judge found the imminent danger exception to Section 1915 does not apply and 24 recommended the motion to proceed in forma pauperis be denied. (Id. at 4.) 25 The Court served the Findings and Recommendations on Plaintiff and notified him that 26 any objections were due within 30 days. (Doc. 8 at 5.) The Court advised Plaintiff the “failure to 27 file any objections within the specified time may result in the waiver of certain rights on appeal.” 28 (Id. at 4–5, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) The Court granted 1 | Plaintiff's request for a 45-day extension of time to file the objections. (Docs. 9, 10.) However, he 2 | did not file objections. Instead, Plaintiff filed a “judicial notice of exceptional circumstances,” 3 | which appears to be a request for appointment of counsel and a continuance. (Doc. 11.) 4 Even if the Court were to construe Plaintiff's “judicial notice” (Doc. 11) as objections to 5 | the Findings and Recommendations, Plaintiff does not address the specific findings of the 6 | magistrate judge. (See generally id.) Rather, Plaintiff complains of his lack of access to the law 7 | library and healthcare. He contends “for these reasons the inability to meet these due dates and 8 | present rebuttal that vindicates the constitutional contention and innocence of the Plaintiff/ 9 | claimant party ...is not and should not be deemed as the Plaintiff's errors.” (Id. at 2.) 10 | Importantly, however, Plaintiff's innocence is not at issue in this proceeding. Plaintiff does not 11 || dispute the determination that the allegations in his complaint do not show imminent danger of 12 | physical harm. He also does not dispute the magistrate judge’s finding that the actions identified 13 | qualify as strikes under Section 1915(g). 14 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 15 || Having carefully reviewed the entire matter, the Court concludes the Findings and 16 || Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 17 1. The Findings and Recommendations filed on January 14, 2025 (Doc. 8) are 18 ADOPTED in full. 19 2. Plaintiff's motion to proceed in forma paupers (Doc. 6) is DENIED. 20 3. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full 21 the $405.00 to proceed with his action. 22 Plaintiff is advised that failure to pay the required filing fee as ordered will result in 23 the dismissal of this action without prejudice. 24 95 IT IS SO ORDERED.

| Dated: _ April 3, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 27 28