(PC) McElroy v. Gomez

• Court: District Court, E.D. California
• Decided: May 18, 2020
• Docket: 1:20-cv-00658
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 LATWAHN MCELROY, ) Case No.: 1:20-cv-00658-SAB (PC) ) 12 Plaintiff, ) ) ORDER GRANTING PLAINTIFF’S MOTION 13 v. ) TO PROCEED IN FORMA PAUPERIS BASED ON FINDING OF IMMINENT DANGER 14 GOMEZ, et al.,, ) EXCEPTION ) 15 Defendants. ) [ECF No. 4] ) 16 ) ) 17 )

18 Plaintiff Latwahn McElroy is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 Plaintiff filed the instant complaint on May 11, 2020. (ECF No. 1.) 21 Currently before the Court is Plaintiff’s motion to in forma pauperis on May 14, 2020. (ECF 22 No. 4.) 23 I. 24 LEGAL STANDARD 25 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 26 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 27 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 28 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 1 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 2 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 3 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 4 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 5 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 7 U.S.C. § 1915(g). 8 II. 9 DISCUSSION 10 As a threshold issue before turning to whether the PLRA applies to this case, the Court must 11 examine whether Plaintiff’s claim is properly brought in a civil rights action, pursuant to 42 U.S.C. § 12 1983, rather than in a petition for writ of habeas corpus. In this case, a finding in Plaintiff’s favor, i.e., 13 that he was subjected to unconstitutional conditions, would not necessarily impact the duration of his 14 confinement. Therefore, his claim falls outside of the core of habeas corpus, and is properly brought in 15 a civil rights complaint. See Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc). 16 Turning to the application of the PLRA in this matter, the Court finds that Plaintiff has incurred 17 three or more strikes under section 1915(g) prior to filing this lawsuit. The Court takes judicial notice 18 of the following cases: McElroy v. Schultz, No. 1:08-cv-00179-OWW-MSJ (E.D. Cal. April 20, 2010) 19 (dismissed action for failure to state a cognizable claim for relief); McElroy v. CDC, No. 2:08-cv- 20 000733-HWG (E.D. Cal. June 3, 2009) (dismissed action for failure to state a cognizable claim for 21 relief); McElroy v. Gebmedin, et al., No. 1:08-cv-00124-LJO-GSA (E.D. Cal. Dec. 11, 2008) (dismissed 22 for failure to state a cognizable claim for relief);1 McElroy v. Inglewood, et al., No. 2:03-cv-5034-UA- 23 MLG (C.D. Cal. July 25, 2003) (dismissed as frivolous); and McElroy v. Inglewood, et al., No. 2:02- 24 25

26 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismissed a complaint on the ground that it fails to state a claim, and (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 27 amended complaint, the dismissal counts as a strike under § 1915(g).”). The Ninth Circuit reasoned that “[a] prisoner may not avoid incurring strikes simply by declining to take advantage” of the opportunity to amend the complaint. Id. 28 1 4301-MMM-MLG (C.D. Cal. Nov. 20, 2002) (dismissed for failure to state a cognizable claim for 2 relief). 3 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 4 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 5 the conditions he faced at the time he filed his complaint on May 8, 2020.2 Andrews, 493 F.3d at 1053- 6 1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, as are 7 any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits- 8 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 9 The Court finds that Plaintiff’s complaint allegations do not meet the imminent danger exception. 10 Andrews, 493 F.3d at 1053. 11 In his complaint, Plaintiff alleges, inter alia, that he has not been provided adequate medical 12 devices or placed in an appropriate cell, which has resulted in multiple injuries with no treatment, and 13 that he is currently housed with an incompatible inmate or threatened to be housed with an 14 incompatible inmate, despite his single cell status. Based on the allegations, liberally construed, the 15 Court finds that Plaintiff’s allegations of imminent harm are sufficiently plausible. Andrews v. 16 Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (emphasizing that the allegations in a pro se complaint 17 are required to be liberally construed). Therefore, the Court concludes that Plaintiff has credibly 18 alleged imminent danger of serious physical injury pursuant to 28 U.S.C. § 1915(g) to be allowed to 19 proceed in forma pauperis in this action. 20 III. 21 ORDER 22 Based on the foregoing, it is HEREBY ORDERED that: 23 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 4) is granted; 24 25

26 2 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the Court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); 27 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 28 VwOAOe 4:6 VEO YEAR MUU OIC ROPE PAY OT Mt

1 2. The Director of the California Department of Corrections and Rehabilitation or his 2 designee shall collect payments from Plaintiffs prison trust account in an amount equ: 3 to twenty percent (20%) of the preceding month’s income credited to the prisoner’s 4 trust account and shall forward those payments to the Clerk of the Court each time the 5 amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), unt 6 a total of $350.00 has been collected and forwarded to the Clerk of the Court. The 7 payments shall be clearly identified by the name and case number assigned to this 8 action. 9 3. The Clerk of the Court is directed to serve a copy of this order and a copy of Plaintiff’ 10 in forma pauperis application on the Director of the California Department of 11 Corrections and Rehabilitations, via the court’s electronic case filing system 12 (CM/ECF). 13 4. The Clerk of Court is directed to serve a copy of this order on the Financial 14 Department, U.S. District Court, Eastern District of California, Fresno Division. 15 5. Plaintiff is advised that his complaint will be screened in due course, but the Court has 16 an extremely large number of pro se plaintiff civil rights cases pending before it, and 17 delay is inevitable. 18 19 IS SO ORDERED. A (re 20 || Dated: _May 15, 2020 F- UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28