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Latwahn Mcelroy v. N. Asad

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 9, 2012

LATWAHN MCELROY,
PLAINTIFF,
v.
N. ASAD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the action.

A review of the record revealed that plaintiff may be ineligible for in forma pauperis status under the Prison Litigation Reform Act ("PLRA"), as is more fully explained in the court's September 4, 2012, order. Plaintiff was directed to show cause why this action should not be dismissed without prejudice to re-filing the action with pre-payment of fees. Plaintiff filed a response on September 24, 2012. In his response, plaintiff states that he is under "imminent danger," an exception to application of the PLRA's "three strikes" rule against barring in forma pauperis status. Plaintiff states:

Heinous injury and safety concerns is what this 42 U.S.C. § 1982 is induced by. In short, Plaintiff suffered and is subject to several attacks on his health which jeopardizes life as well as wounds that should be avoided by use of this court.

The harm is tantamount as nothing yet has been exacted that would "END" the extraordinary-unfavorable-conditions and plots.

The court finds that plaintiff has not demonstrated that he is under risk of imminent injury. His complaint concerns the alleged lack of medical care on a specific occasion as well as allegations that he should not be required to share a cell with particular inmates. Such allegations do not concern a threat of imminent danger of serious physical injury. For the reasons outlined in the September 24, 2012, order, this action will be dismissed without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. This action is dismissed without prejudice; and

2. The Clerk of the Court is directed to enter judgment and close this file.

20121009

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