McElroy v. McLean

Background

Latwahn J. McElroy, a state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. The court had ordered him to show why the case should not be barred under the three-strikes rule in 28 U.S.C. § 1915(g). McElroy did not respond to that order, but he filed motions for appointed counsel and a temporary restraining order.

Proceeding Without Paying the Filing Fee

The court stated that McElroy did not dispute having at least three qualifying prior dismissals, or “strikes,” and did not argue that he was in immediate danger of serious physical injury. The court independently reviewed the complaint and other filings. Although McElroy alleged that events at Pelican Bay State Prison involved disability accommodations and medical treatment, his allegations about current medical problems did not show the immediate danger required by § 1915(g). The court denied his motion to proceed without paying the filing fee.

Appointed Counsel

The court explained that there is no constitutional right to a lawyer in a civil case. A court may ask a lawyer to represent a person who cannot afford one only in exceptional circumstances. That determination considers the likely success of the claims and the person’s ability to explain the claims given the complexity of the legal issues. The court found that McElroy had presented his claims adequately and that the issues were not complex, so it denied the motion to appoint counsel.

Temporary Restraining Order

A temporary restraining order is emergency relief intended to preserve the current situation and prevent irreparable harm until a hearing on a preliminary injunction. The court applied the requirements that a plaintiff show likely success, likely and immediate irreparable harm, that the balance of harms favors the plaintiff, and that the injunction serves the public interest.

McElroy sought medical treatment and physical therapy, but the court found that he had not provided enough specific information to satisfy those requirements. The court also noted that McElroy was being held at North Kern State Prison while the defendants were at Pelican Bay State Prison. An injunction binds only the parties and certain related persons or entities, and a court should not issue an injunction it cannot enforce. McElroy had not identified a defendant who could provide the relief he requested. The court denied the motion for a temporary restraining order.

Disposition

The court denied McElroy’s motion to appoint counsel, motion for a temporary restraining order, and motion to proceed without paying the filing fee. It ordered him to pay the full $400 filing fee by July 15, 2020, to proceed with the action, or the case would be dismissed.