Kelly v. Paredes
- Susan Illston
- 3:20-cv-08987
- U.S. District Court · Northern District of California
- 2
In Kelly v. Paredes, Judge Illston ordered Kelly to explain why pauper status and this action should not be dismissed under the prisoner three-strikes rule.
James Carl Kelly, the prisoner plaintiff seeking to proceed without paying the filing fee upfront; the action against Joseph Paredes and the other defendants was also subject to the contemplated dismissal.
What happened
In Kelly v. Paredes, James Carl Kelly, a California prisoner representing himself, filed a civil-rights lawsuit under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee upfront.
The court identified at least three of Kelly’s earlier prisoner cases that were dismissed for reasons that may count under the prisoner three-strikes rule. The court also said it did not appear that Kelly faced an immediate risk of serious physical injury when he filed this case.
The court did not yet deny Kelly’s application or dismiss the action. Instead, Judge Susan Illston ordered Kelly to explain in writing within 30 days why the application should not be denied and the action should not be dismissed, or to pay the full $400 filing fee by that deadline.
The detailed version
- Kelly v. Paredes · No. 3:20-cv-08987
- Susan Illston
- Feb. 1, 2021
Background
James Carl Kelly, a California prisoner proceeding without a lawyer, filed a civil-rights action under 42 U.S.C. § 1983 against Joseph Paredes and other defendants. Kelly applied to proceed without paying the filing fee upfront under the federal law governing fees for prisoners who cannot pay.
Legal standard
The court discussed 28 U.S.C. § 1915(g), commonly called the prisoner “three-strikes” rule. It provides that a prisoner generally may not proceed without paying the filing fee if, on three or more earlier occasions while incarcerated or detained, the prisoner brought a federal action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. The exception is when the prisoner was under imminent danger of serious physical injury.
The court also explained that a prisoner must receive notice of the earlier dismissals being considered and an opportunity to respond before the court denies pauper status under this rule. A dismissal under § 1915(g) would prevent the prisoner from proceeding without paying the fee, but the claims could still be pursued if the full filing fee were paid at the start of the case.
Prior dismissals identified by the court
The court’s review identified at least three earlier prisoner cases involving Kelly that it considered potentially qualifying dismissals:
- Kelly v. Sao, Eastern District of California, No. 18-cv-484 DAD, dismissed for failure to state a claim. - Kelly v. Elit, Eastern District of California, No. 18-cv-019 DAD, dismissed for failure to state a claim and failure to prosecute after Kelly did not file an amended complaint addressing identified deficiencies. - Kelly v. Gyorky, Eastern District of California, No. 11-cv-2142 WBS, dismissed for failure to state a claim.
Order
The court stated that it did not appear Kelly was under imminent danger of serious physical injury when he filed this action. It therefore ordered Kelly to show cause in writing within 30 days of the order’s date why his application to proceed without paying the filing fee should not be denied and why the action should not be dismissed under § 1915(g). Alternatively, Kelly could avoid dismissal by paying the full $400 filing fee by the same deadline.
The order was an order to show cause regarding a contemplated dismissal. It did not itself deny the fee application or dismiss the action.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.