1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES CARL KELLY, Case No. 22-cv-03451-JST

8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. LEAVE TO PROCEED IN FORMA PAUPERIS SHOULD NOT BE DENIED 10 S. GATES, et al., Re: ECF No. 2 Defendants. 11

12 13 Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), has filed a pro se action 14 pursuant to

. He has requested leave to proceed in forma pauperis. ECF No. 2. 15 For the reasons set forth below, the Court orders Plaintiff to show cause why his request for leave 16 to proceed in forma pauperis should not be denied pursuant to the three strikes provision set forth 17 in

(g). 18 DISCUSSION 19 Plaintiff is a frequent litigant. Plaintiff has filed at least ten civil rights cases in this 20 district, see, e.g., Kelly v. Warden of Salinas Valley State Prison, C No. 22-cv-02647-JST; Kelly v. 21 Quintero et al., C No. 21-cv-5127 JST; Kelly v. Salinas Valley State Prison, et al., C No. 21-cv- 22 04498; Kelly v. Paredes et al, C No. 20-cv-08987 SI; Kelly v. Sullivan, et al., C No. 19-cv-3138 23 SI; Kelly v. Wood, et al., C No. 19-cv-3086 SI; Kelly v. Sullivan, et al., C No. 19-cv-3084 SI; Kelly v. Sullivan, et al., C No. 19-cv-0125 SI; Kelly v. Warden, et al., C No. 19-cv-0046; Kelly v. 24 Sullivan, et al., C No. 19-cv-0045; Kelly v. Sullivan, et al., C No. 18-cv-6386; and Kelly v. 25 Sullivan, C No. 18-cv-6351 EMC. He has also filed a number of cases in the Eastern District of 26 California. In C Nos. 20-cv-08987, 19-cv-3138 SI, 19-cv-3084 SI, 19-cv-0125 SI, 19-cv-0046 SI, 27 1 1915(g).

U.S.C. § 1915(g) 3 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 4 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 5 bring a civil action under

, i.e., may not proceed in forma pauperis, “if the 6 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 7 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 8 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 9 imminent danger of serious physical injury.”

(g). For purposes of a dismissal 10 that may be counted under Section 1915(g), the phrase “fails to state a claim on which relief may 11 be granted” parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the 12 same interpretation, the word “frivolous” refers to a case that is “‘of little weight or importance: 13 having no basis in law or fact,’” and the word “malicious” refers to a case “filed with the 14 ‘intention or desire to harm another.’” Andrews v. King,

(9th Cir. 2005) 15 (citation omitted). Only cases within one of these three categories can be counted as strikes for 16 Section 1915(g) purposes. The mere fact that Plaintiff has filed many cases in the federal courts 17 does not warrant dismissal under Section 1915(g). See

Rather, dismissal of an action under 18 Section 1915(g) should only occur when, “after careful evaluation of the order dismissing an 19 [earlier] action, and other relevant information, the district court determines that the action was 20 dismissed because it was frivolous, malicious or failed to state a claim.”

21 Andrews requires that the prisoner be given notice of the potential applicability of Section 22 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 23 ultimate burden of persuasion that Section 1915(g) does not bar in forma pauperis status for him. 24

. Andrews implicitly allows the Court to sua sponte raise the Section 1915(g) issue, but 25 requires the Court to notify the prisoner of the earlier dismissals it considers to support a Section 26 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before 27 dismissing the action. See

A dismissal under Section 1915(g) means that a prisoner cannot 1 pursue his claims if he pays the full filing fee at the outset of the action. 2 B. Complaint 3 Plaintiff commenced this action by mailing the complaint to the Court on or about June 5, 4 2022. ECF No. 1-2. He has named as defendants “Chief of Health Grievances” S. Gates, 5 reviewing authority S. Sawyer, M. Villanueva, R.N. healthcare compliance analyst T. Mendez, 6 custody appeals representative C. Martella, healthcare grievance representative E. Delgado, ADA 7 coordinator R. Mojica, and Dr. P. Lam. ECF No. 1 at 2. 8 The complaint makes the following allegations. On November 23, 2021, Plaintiff was 9 awakened by chest pains, accompanied by dizziness and nausea. When his nitro-state pills did not 10 relieve the chest pain, he yelled, “Man down.” RN Guillen and other nurses arrived at his cell. 11 Plaintiff describes the following mistreatment by RN Guillen. RN Guillen refused Plaintiff’s 12 request to be seen by a doctor and instead escorted Plaintiff to D1 Clinic on D1 Facility. RN 13 Guillen hit Plaintiff three times on the back of his neck on the way to the clinic. RN Guillen 14 referred to him as an asshole to custody officer B. Powell. RN Guillen denied him toilet paper. 15 ECF No. 1 at 2-7. 16 Plaintiff left D1 Clinic because of RN Guillen’s treatment and upon his return to his cell, 17 went mand down and was sent to CTC and then to Natividad Hospital. Upon his return to CTF, 18 Plaintiff filed an Form 1824, request for reasonable accommodation, requesting safety from RN 19 Guillen and officer Powell. This request was denied by defendants Mojica, Lam, Delgado, 20 Martella, and Mendez. RN Guillen was then assigned to Plaintiff’s mental health group which he 21 is required to attend. Plaintiff filed a grievance regarding RN Guillen’s presence in his mental 22 health group which was denied by defendants Sawyer and Gates. ECF No. 1 at 2-7. 23 C. Analysis 24 A review of the dismissal orders in Plaintiff’s prior prisoner actions reveals that he has had 25 at least three such cases dismissed on the grounds that they were frivolous, malicious, or failed to 26 state a claim upon which relief may be granted. The qualifying cases include: (1) Kelly v. Sao, E. 27 D. Cal. No. 18-cv-484 DAD (dismissed for failure to state a claim); (2) Kelly v. Elit, E. D. Cal. 1 No. 11-cv-2142 WBS (dismissed for failure to state a claim and failure to prosecute when plaintiff 2 || did not file amended complaint curing deficiencies identified in initial complaint). 3 The complaint does not allege that Plaintiff is in imminent danger of serious physical 4 || injury. Although Plaintiff claims that he fears further assault by RN Guillen, there is no indication 5 that RN Guillen is likely to cause Plaintiff serious physical injury. Being hit three times in the 6 || neck did not cause Plaintiff serious physical injury. Plaintiff's Natividad Hospital medical records 7 upon admittance on November 23, 2021 indicate no injury to his neck. ECF No. | at 25. And, 8 RN Guillen has not assaulted or otherwise Plaintiff since the November 23, 2021 incident, seven 9 months ago. 10 In light of the dismissals of three prior actions on the grounds that they were frivolous, 11 malicious, or failed to state a claim upon which relief may be granted, and because it does not 12 || appear that Plaintiff was under imminent danger of serious physical injury when he filed this 5 13 action, Plaintiff is ORDERED TO SHOW CAUSE in writing within twenty-eight days of this 14 || order, why his in forma pauperis application should not be denied. In the alternative, he may pay 3 15 the full filing fee of $402.00 by the deadline. 16 CONCLUSION 3 17 Accordingly, within twenty-eight (28) days of the date of this order, Plaintiff shall show 18 cause why his request for leave to proceed in forma pauperis should not be denied pursuant to the 19 || three strikes provision set forth in

. In the alternative, he may pay the $402.00 20 || filing fee in full. Failure to respond in accordance with this order may result in dismissal of this 21 action without further notice to Plaintiff pursuant to Rule 41(b) of the Federal Rules of Civil 22 || Procedure for failure to comply with a court order. 23 IT IS SO ORDERED. 24 || Dated: June 13, 2022 . 25 JON S. TIGAR 26 ited States District Judge 27 28