Kelly v. Warden of Salinas Valley State Prison

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 he sought permission to proceed without paying the filing fee in advance. Kelly named the prison warden, doctor Lara Denils, nurses working under Dr. Denils since April 3, 2022, and doctor Yeh as defendants.

Kelly alleged that prison nurses would not let him see a doctor in retaliation for a grievance he filed against another nurse, Patrick Gullins, whom Kelly alleged had punched him. He also alleged that he had been denied medical care, had not received medication for chronic pain, and needed treatment for various medical conditions, including heart problems, bruising, a lumbar-spine injury, degenerative disk disease, and seizures. He requested wheelchair equipment, housing near family members, monetary compensation, pain treatment, testimony from heart surgeon James Young, and an order requiring Dr. Yeh to send him to a medical facility.

Three-strikes rule

The Prison Litigation Reform Act bars a prisoner from proceeding without paying the filing fee if the prisoner has, on three or more prior occasions while incarcerated or detained, brought cases that were dismissed as frivolous, malicious, or for failure to state a claim. The exception is when the prisoner is under imminent danger of serious physical injury.

The court identified at least three qualifying prior dismissals: Kelly v. Sao, E.D. Cal. No. 18-cv-484 DAD, dismissed for failure to state a claim; Kelly v. Elit, E.D. Cal. No. 18-cv-019 DAD, dismissed for failure to state a claim; and Kelly v. Gyorky, E.D. Cal. No. 11-cv-2142 WBS, dismissed for failure to state a claim and failure to prosecute.

The court found that Kelly’s complaint did not plausibly allege an imminent danger of serious physical injury. The court noted that the complaint and its attachments contradicted his claim that he had not received medical attention: Kelly acknowledged seeing Dr. Denils and Dr. Yeh, and the attachments showed visits with medical providers in 2021. The court stated that Kelly’s allegations concerned chronic conditions that appeared to have been regularly addressed by prison medical professionals, although not to his satisfaction. The court found no specific issue showing that he faced an imminent risk of serious physical injury when he filed the action.

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). Alternatively, Kelly could pay the full $402 filing fee by the deadline. The court warned that failure to respond as ordered could result in dismissal under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.

This was an order to show cause, not a final denial of the fee request or a final dismissal of the action. Judge Jon S. Tigar signed the order.