(PC) McElroy v. Asad et al, No. 2:2015cv00904 - Document 12 (E.D. Cal. 2015)

Court Description: ORDER signed by Magistrate Judge Edmund F. Brennan on 9/23/15 ORDERING that the June 17, 2015 findings and recommendations (ECF No. 5 ) are vacated; Plaintiffs application to proceed in forma pauperis (ECF No. 7 ) is denied; and this action is dismissed without prejudice to re-filing upon pre-payment of the $400filing fee.(Dillon, M)

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(PC) McElroy v. Asad et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JABBARI McELROY, 12 No. 2:15-cv-0904-EFB P Plaintiff, 13 v. 14 N. ASAD, et al., 15 ORDER Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983.1 On June 17, 2015, the court recommended that this action be dismissed because 19 plaintiff failed to pay the filing fee or submit an application for leave to proceed in forma 20 pauperis. ECF No. 5. Thereafter, plaintiff filed an application for leave to proceed in forma 21 pauperis (IFP) and consented to proceed before the undersigned for all purposes. ECF Nos. 6, 7. 22 In light of plaintiff’s IFP application, the June 17, 2015 recommendation is vacated. But as 23 explained below, plaintiff has not demonstrated he is eligible to proceed in forma pauperis and 24 this action must therefore be dismissed. 25 ///// 26 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 Dockets.Justia.com 1 A prisoner may not proceed in forma pauperis: 2 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 3 4 5 6 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 7 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 8 state a claim upon which relief may be granted. See (1) McElroy v. Gebbmedin, No. 1:08-cv- 9 0124-LJO-GSA (E.D. Cal. Dec. 11, 2008) (order dismissing action for failure to state a claim); 10 (2) McElroy v. Schultz, No. 1:08-cv-0179-OWW-MJS (E.D. Cal. Apr. 30, 2010) (order 11 dismissing action for failure to state a claim); (3) McElroy v. CDC, 2:08-cv-0733-HWG (E.D. 12 Cal. June 3, 2009) (order dismissing action for failure to state a claim); and (4) McElroy v. 13 Ground, No. 1:13-cv-483-MJS (E.D. Cal. Nov. 1, 2013) (order dismissing action for failure to 14 state a claim). See also McElroy v. Turner, No. 2:12-cv-1182-CMK (E.D. Cal. Aug. 13, 2012) 15 (order designating plaintiff a three strikes litigant pursuant to § 1915(g)). 16 The section 1915(g) exception applies if the complaint makes a plausible allegation that 17 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 18 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to 19 apply, the court must look to the conditions the “prisoner faced at the time the complaint was 20 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 21 allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an 22 overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055. Here, plaintiff’s allegations do not demonstrate that he suffered from an ongoing or 23 24 imminent danger of serious physical injury at the time he filed his complaint. See ECF No. 1 25 (including allegations regarding an inadequate administrative appeals process and unlawful 26 property searches and seizures). Thus, the imminent danger exception does not apply. Plaintiff’s 27 application for leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). 28 ///// 2 1 Accordingly, it is hereby ORDERED that 2 1. The June 17, 2015 findings and recommendations (ECF No. 5) are vacated; 3 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) is denied; and 4 3. This action is dismissed without prejudice to re-filing upon pre-payment of the $400 5 filing fee. 6 DATED: September 23, 2015. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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