Kelly v. Atenly

Background

James Carl Kelly, an incarcerated person at Salinas Valley State Prison, filed this action under 42 U.S.C. § 1983 while representing himself. He asked to proceed without prepaying the filing fee.

The complaint named wardens, doctors, psychologists, nurses, correctional officers, and other prison-related personnel. Kelly alleged, among other things, that correctional officers beat him in November 2018; that he suffered injuries and received hospital treatment; that prison medical personnel failed to provide adequate care; and that he had continuing medical conditions and pain. He also referred to an attack and rape by an unknown assailant in 2003 and to medical treatment spanning later years.

Three-strikes rule

The Prison Litigation Reform Act generally prevents an incarcerated person from proceeding without prepaying the filing fee if that person has brought three or more earlier federal actions that were dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the person was in immediate danger of serious physical injury when filing the new action.

The court stated that Kelly had at least three qualifying prior dismissals and that those dismissals counted as strikes. The opinion’s discussion identifies qualifying prior cases but the provided text does not fully display the numbering and list of all of them. The court also explained that Kelly had to be given notice and an opportunity to respond before his request could be denied.

Immediate-danger analysis

The court concluded that the complaint did not allege an immediate danger of serious physical injury. It treated the alleged events from 2003 and 2018 as past events. Although Kelly appeared to allege that he was not receiving current medical care, the court found that contention contradicted exhibits showing that, during the prior year, he had seen a cardiologist and neurologist, received cardiac testing and other tests, had brain imaging, had blood-clotting levels monitored, and received prescribed medication for pain and a heart condition.

Order

The court ordered Kelly to show cause—that is, to explain in writing—within 28 days why his request to proceed without prepaying the filing fee should not be denied under 28 U.S.C. § 1915(g). As an alternative, he could pay the full $402 filing fee. The court warned that failure to respond as ordered could result in dismissal of the action under Federal Rule of Civil Procedure 41(b). The order did not itself deny the fee-waiver request or dismiss the action.