1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 JAMES CARL KELLY, Case No. 20-cv-08987-SI

6 Plaintiff, ORDER TO SHOW CAUSE RE. 7 v. CONTEMPLATED DISMISSAL

8 JOSEPH PAREDES, et al., 9 Defendants.

10 11 James Carl Kelly, a California prisoner, filed this pro se civil rights action pursuant to 42

. Kelly has applied to proceed in forma pauperis pursuant to

. The 13 action is now before the court for consideration of Kelly’s in forma pauperis application. 14 A prisoner may not bring a civil action in forma pauperis under

“if the 15 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an 16 action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 17 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 18 imminent danger of serious physical injury.”

(g). Section 1915(g) requires that 19 this court consider prisoner actions dismissed before, as well as after, the statute’s 1996 enactment. 20 Tierney v. Kupers,

(9th Cir. 1997). 21 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state a 22 claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure 23 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little 24 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case 25 “filed with the ‘intention or desire to harm another.’” Andrews v. King,

(9th 26 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 27 strikes for § 1915(g) purposes, so the mere fact that Kelly has filed many cases in the federal courts 1 should only occur when, “after careful evaluation of the order dismissing an [earlier] action, and 2 || other relevant information, the district court determines that the action was dismissed because it was 3 frivolous, malicious or failed to state a claim.” Id. 4 Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g), 5 by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden 6 || of persuasion that § 1915(g) does not bar pauper status for him. /d. at 1120. Andrews implicitly 7 allows the court to sua sponte raise the § 1915(g) problem, but requires the court to notify the 8 || prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the prisoner 9 an opportunity to be heard on the matter before dismissing the action. See id. A dismissal under 10 § 1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915(g), but he 11 still may pursue his claims if he pays the full filing fee at the outset of the action. 12 A review of the dismissal orders in Kelly’s prior prisoner actions reveals that he has had at 5 13 least three such cases dismissed on the grounds that they were frivolous, malicious, or failed to state 14 a claim upon which relief may be granted. The qualifying cases include: (1) Kelly v. Sao, E. D. Cal. 3 15 No. 18-cv-484 DAD (dismissed for failure to state a claim); (2) Kelly v. Elit, E. D. Cal. No. 18-cv- 16 || 019 DAD (dismissed for failure to state a claim and failure to prosecute when plaintiff did not file 3 17 an amended complaint curing deficiencies identified in his complaint); and (3) Kelly v. Gyorky, E. 18 D. Cal. No. 11-cv-2142 WBS (dismissed for failure to state a claim). 19 In light of these dismissals, and because it does not appear that he was under imminent 20 || danger of serious physical injury when he filed this action, Kelly is ORDERED TO SHOW CAUSE 21 in writing within thirty days of the date of this order, why his in forma pauperis application should 22 || not be denied and this action should not be dismissed under

(g). In the alternative 23 || to showing cause why the actions should not be dismissed, Kelly may avoid dismissal by paying the 24 || full $400.00 filing fee by the same deadline. 25 IT IS SO ORDERED. 26 || Dated: February 1, 2021 Stn WU tee 27 28 SUSAN ILLSTON United States District Judge