McElroy v. McLean
- Phyllis Hamilton
- 4:20-cv-01900
- U.S. District Court · Northern District of California
- 3
In McElroy v. McLean, Judge Hamilton ordered McElroy to explain the possible filing-fee bar and denied his law-library request.
Latwahn J. McElroy, whose request to proceed without paying the filing fee was placed in question and whose law-library-access request was denied; the defendants had not yet been served.
What happened
McElroy v. McLean is a civil-rights case brought by Latwahn J. McElroy, a prisoner representing himself, who also asked to proceed without paying the filing fee.
The court said McElroy had at least three earlier cases dismissed for reasons that count as filing “strikes,” which may prevent him from proceeding without paying the fee unless he faced an immediate danger of serious physical injury. The court also said no defendants had yet been served.
Judge Phyllis J. Hamilton ordered McElroy to explain by June 19, 2020, why the case should not be barred under the three-strikes rule and why his fee-waiver application should not be denied. The court denied his request for an order requiring access to a law library and warned that failing to respond would result in dismissal.
The detailed version
- McElroy v. McLean · No. 4:20-cv-01900
- Phyllis Hamilton
- May 13, 2020
Background
Latwahn J. McElroy brought this civil-rights case without a lawyer while incarcerated. He also applied to proceed without paying the filing fee. The court issued an order requiring him to explain why the case should not be barred under the Prison Litigation Reform Act’s three-strikes rule.
Three-strikes issue
Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner is under imminent danger of serious physical injury. A prisoner who is barred by this rule may still pursue the claim by paying the full filing fee at the beginning of the case.
The court stated that McElroy had already been deemed barred by the three-strikes rule in the district. It reviewed five earlier cases and found that each counted as a strike. In several of those cases, the court had allowed McElroy to amend his complaint, but he did not file an amended complaint; the court held that those dismissals still counted as strikes.
Order
The court ordered McElroy to show cause by June 19, 2020, why this case should not be deemed barred by the three-strikes rule and why his application to proceed without paying the filing fee should not be denied. The order states that failure to respond would result in dismissal. It did not finally rule in this order on whether the fee-waiver application would be denied.
The court also denied McElroy’s request for an order requiring access to a law library. It explained that no defendant had yet been served, that the defendants were at Pelican Bay State Prison, and that McElroy was at North Kern State Prison. The court stated that it could not order nonparties and noted that McElroy could show the order to prison officials when seeking law-library access.
Disposition
Judge Phyllis J. Hamilton denied the law-library-access request and ordered McElroy to respond to the three-strikes issue. The order warned that failure to respond would result in dismissal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.