Kelly v. Gates

Background

James Carl Kelly, an inmate at Salinas Valley State Prison, filed this action under 42 U.S.C. § 1983 without a lawyer. He asked to proceed in forma pauperis, meaning without paying the filing fee at the start of the case.

Kelly alleged that on November 23, 2021, he experienced chest pain, dizziness, and nausea. He said that after he called for help, a nurse refused his request to see a doctor, struck him three times on the back of his neck while escorting him to a clinic, insulted him, and denied him toilet paper. Kelly later went to a hospital. He also alleged that prison officials denied his request for protection from the nurse and an officer, and that officials denied his grievance after the nurse was assigned to his required mental-health group.

The three-strikes rule

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner has had three or more prior federal cases dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner was under imminent danger of serious physical injury. The court explained that merely filing many cases is not enough to establish three strikes; the prior dismissal orders must be reviewed.

The court stated that its review showed at least three qualifying prior prisoner cases involving Kelly. The opinion identifies qualifying dismissals in prior related proceedings, including dismissals for failure to state a claim. Because the opinion text provided here does not identify all three proceedings, it is not possible to give a complete list from this text alone.

Imminent-danger analysis

The court concluded that the complaint did not allege imminent danger of serious physical injury when Kelly filed this action. The court noted that the alleged blows to his neck did not cause serious physical injury according to the complaint and hospital records, and that the nurse had not assaulted or otherwise harmed Kelly since the November 23, 2021 incident, approximately seven months earlier.

Order

The court ordered Kelly to show cause in writing within 28 days why his request to proceed without paying the filing fee should not be denied under 28 U.S.C. § 1915(g). As an alternative, the court allowed him to pay the full $402 filing fee by the deadline. The court stated that failure to respond as ordered may result in dismissal of the action without further notice under Federal Rule of Civil Procedure 41(b).

This was an order to show cause, not a final denial of the fee-waiver request or a final dismissal of the action.