McElroy v. McLean

Background

Latwahn J. McElroy, a state prisoner representing himself, 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 explain why the case should not be barred under the “three strikes” rule in 28 U.S.C. § 1915(g). That rule generally limits a prisoner’s ability to proceed without paying the filing fee after three qualifying prior cases, unless the prisoner shows that he faced imminent danger of serious physical injury.

McElroy filed an initial request for a temporary restraining order but did not address the court’s order requiring an explanation about the three-strikes rule. The court denied that request, denied his request to proceed without paying the filing fee, and ordered him to pay the full filing fee or face dismissal of the case. McElroy did not pay the fee and instead filed a second request for a temporary restraining order, arguing that he was in imminent danger.

Court’s Analysis

The court relied on the reasons stated in its earlier order. It had reviewed the complaint and other filings and determined that McElroy was not in serious physical danger. The court noted that the complaint was filed on March 11, 2020, while McElroy was at RJ Donovan Correctional Facility, but concerned events at Pelican Bay State Prison in 2015. The opinion states that McElroy was then being held at North Kern State Prison.

The court found that McElroy had not shown that he faced imminent danger of serious physical injury at the time he filed the complaint. It ruled that his conclusory statements, with little supporting evidence, were insufficient.

Disposition

The court denied McElroy’s second motion for a temporary restraining order. It also ordered that, to proceed with the action, he had to pay the full $400 filing fee by July 15, 2020. The order states that the case would be dismissed if he did not pay the fee. Judge Phyllis J. Hamilton signed the order on July 1, 2020.