McElroy v. Department of Corrections

Background

Latwahn J. McElroy, an incarcerated plaintiff representing himself, filed a civil-rights action under 42 U.S.C. § 1983 against the Department of Corrections and other defendants. The complaint named more than 30 defendants, including identified prison officials, medical providers, and Global TelLink, along with Doe defendants. It raised numerous allegations about prison conditions and treatment, including water, cell plumbing, medical care, housing, religious meals and items, legal resources, alleged environmental hazards, and a slip-and-fall incident.

McElroy also filed two substantially identical pleadings requesting an order requiring defendants to explain why preliminary relief should not issue, temporary or preliminary injunctive relief, sanctions, and judicial notice.

Three-Strikes Fee Issue

The Prison Litigation Reform Act generally prevents a prisoner from proceeding in forma pauperis—that is, without prepaying the filing fee—if the prisoner has brought three or more earlier federal actions that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced imminent danger of serious physical injury when the complaint was filed.

The court reviewed McElroy’s earlier cases and found at least three qualifying strikes. The order describes earlier dismissals involving failure to state a claim or frivolousness, including dismissals after opportunities to amend when no adequate amended complaint was filed. The court also noted that McElroy had previously been denied permission to proceed without prepaying the filing fee under the three-strikes provision by the Ninth Circuit and a California federal district court.

The court concluded that the current complaint did not plausibly allege imminent danger of serious physical injury on January 7, 2025, the date the complaint was filed. It found that the allegations about tainted or unavailable water were conclusory and did not link the alleged condition to any defendant. It also found that the complaint did not explain how McElroy’s housing placement created an immediate risk, and that the complaint described a November 2024 medical incident for which he received immediate treatment.

The court therefore ordered McElroy to show cause within 28 days why his request to proceed without prepaying the filing fee should not be denied under 28 U.S.C. § 1915(g). The court did not finally deny that request in this order. It warned that failure to respond as ordered may result in dismissal under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.

Requests for Judicial Notice and Injunctive Relief

The court denied the requests in Docket Nos. 5 and 11. It denied the requests for judicial notice because it was unclear what relief McElroy sought and because the federal rule governing judicial notice applies to certain undisputed facts, not to amending documents.

The court also denied any request for temporary or preliminary injunctive relief as premature. The court had not yet determined whether the case could proceed or whether the complaint stated a legally recognized claim. It explained that preliminary relief must be connected to claims presented in the complaint and that the court could not evaluate such relief before screening the complaint.

Disposition

The court ordered McElroy to show cause within 28 days why his request to proceed without prepaying the filing fee should not be denied under the three-strikes provision. It denied Docket Nos. 5 and 11 and terminated those docket entries. The order did not resolve the merits of McElroy’s civil-rights claims.