Kelly v. Allen
- Jon Tigar
- 4:23-cv-00966
- U.S. District Court · Northern District of California
- 4
In Kelly v. Allen, Judge Tigar ordered James Carl Kelly to explain why his filing-fee waiver should not be denied under the three-strikes rule or pay $402.
James Carl Kelly is directly affected because the court required him either to justify his request to proceed without paying the filing fee upfront or to pay the $402 fee. The defendants were not the subject of a merits ruling in this order.
What happened
In Kelly v. Allen, James Carl Kelly, who is representing himself while incarcerated, sued prison employees under a federal civil-rights law and asked to proceed without paying the filing fee upfront. The case concerns events at Salinas Valley State Prison, where Kelly had previously been housed.
The court identified at least three of Kelly’s earlier cases that counted as strikes because they were dismissed as frivolous, malicious, or for failing to state a claim. The court also found that the complaint did not show that Kelly faced an immediate risk of serious physical injury because the alleged events occurred in 2021 and 2022 and he was no longer housed at that prison.
Judge Tigar did not yet deny Kelly’s requests to proceed without paying the filing fee. Instead, the court ordered Kelly to explain within 28 days why the three-strikes rule should not apply, or to pay the $402 filing fee in full; failing to respond may result in dismissal of the case.
The detailed version
- Kelly v. Allen · No. 4:23-cv-00966
- Jon Tigar
- Apr. 13, 2023
Background
James Carl Kelly, an incarcerated person proceeding without a lawyer, filed a civil-rights action under 42 U.S.C. § 1983 concerning alleged events at Salinas Valley State Prison. He requested permission to proceed without paying the filing fee upfront, a status commonly called proceeding in forma pauperis.
The complaint names Warden T. Allen, Dr. Michael Yeh, nurse Patrick Gullien, office Sampolo, Nurse Bivans, psychiatric doctor Howe, and several officers. Kelly alleges that Gullien assaulted him on November 23, 2021, and again on July 23, 2022; that other prison employees and officers also used force against him; and that his requests for medical and Prison Rape Elimination Act-related assistance were not properly handled. He seeks compensation and the court’s help investigating his claims.
Three-Strikes Rule
The Prison Litigation Reform Act generally prevents an incarcerated person from proceeding without paying the filing fee if that person has had three or more prior federal cases dismissed as frivolous, malicious, or for failure to state a claim. An exception applies when the person is under imminent danger of serious physical injury, meaning an immediate serious physical threat connected to the violations alleged in the complaint.
The court identified three earlier cases involving Kelly that it determined qualified as strikes under this rule. The opinion also states that Kelly had previously been denied permission to proceed without paying the filing fee in at least ten other listed cases.
Court’s Action
The court found that Kelly’s complaint did not allege imminent danger of serious physical injury. It noted that the alleged events occurred in 2021 and 2022 at Salinas Valley State Prison and that Kelly was no longer housed there when he filed this action.
The court ordered Kelly to show cause in writing within 28 days why his requests to proceed without paying the filing fee should not be denied under 28 U.S.C. § 1915(g). Alternatively, he may pay the full $402 filing fee. The court did not yet deny the requests. It warned that failure to respond as ordered may result in dismissal of the action without further notice under Federal Rule of Civil Procedure 41(b).
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.