Kelly v. Allen

Background

James Carl Kelly, an inmate at California State Prison–Sacramento, filed this action under 42 U.S.C. § 1983 without a lawyer. He requested permission to proceed without paying the filing fee, commonly called proceeding in forma pauperis. The court had previously ordered him to explain why that request should not be denied under the Prison Litigation Reform Act’s three-strikes rule.

Kelly then filed a letter requesting more time, a declaration supporting his fee-waiver request, and a request for appointed counsel. In his filings, he corrected the alleged incident date, requested video footage, stated that he feared for his life, and described his imprisonment, medical condition, limited law-library access, education, and lack of legal knowledge.

Three-strikes ruling

The court relied on its earlier finding that Kelly had at least three prior cases dismissed for failure to state a claim or other grounds covered by 28 U.S.C. § 1915(g). The court also previously found that the complaint did not plausibly allege that Kelly faced imminent danger of serious physical injury when he filed this action. The court said that his statement that he feared for his life was conclusory and did not establish the required imminent danger.

The court therefore denied Kelly’s request to proceed without paying the filing fee under § 1915(g). It ordered him to pay the $402 filing and administrative fee in full within 28 days of the order. The court stated that if it did not receive the full fee by that deadline, it would dismiss the action without prejudice to Kelly’s refiling upon payment of the full fee.

Other requests

The court denied as moot Kelly’s request for an extension of time because his declaration was treated as his response to the order to show cause. The court denied his request for video footage because courts cannot conduct discovery on behalf of litigants, and denied his request for guidance because courts cannot provide legal advice to litigants.

The court also denied Kelly’s request for appointment of counsel for lack of exceptional circumstances. The court stated that his likelihood of success was unclear and that the issues did not appear complex at that stage. The denial was expressly without prejudice to the court appointing counsel on its own initiative if circumstances later required it, such as if the case proceeded to trial.

Disposition

Judge Jon S. Tigar ordered that the requests for an extension of time, permission to proceed without paying the filing fee, and appointment of counsel were denied as described above. The order terminated the matters identified as ECF Nos. 4, 6, and 8. It did not resolve the underlying civil-rights claims.