Kelley v. Soto et al
Filing
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ORDER DENYING Plaintiff's 1 Request to Proceed In Forma Pauperis, DISMISSING CASE (Strike) without Prejudice, and VACATING the Order to Resubmit In Forma Pauperis Application; Clerk to Close Case signed by Magistrate Judge Gerald B. Cohn on 6/6/2011. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICK D. KELLEY JR.,
CASE NO. 1:11-cv-00477-GBC (PC)
Plaintiff,
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ORDER DENYING PLAINTIFF’S REQUEST
TO PROCEED IN FORMA PAUPERIS,
DISMISSING CASE WITHOUT
PREJUDICE, AND VACATING THE
ORDER TO RESUBMIT IN FORMA
PAUPERIS APPLICATION
Defendants.
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(ECF Nos. 1 & 7)
v.
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SOTO, et al.,
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/ CLERK TO CLOSE CASE
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ORDER
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Plaintiff Patrick D. Kelley, a state prisoner proceeding pro se, filed this civil rights
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action pursuant to 42 U.S.C. § 1983 on March 8, 2011. (ECF No. 6.) Plaintiff has
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consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF No.
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5.) This action proceeds on Plaintiff’s Complaint, which has not yet been screened by this
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Court. No other parties have appeared.
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Plaintiff requests that he be allowed to proceed in forma pauperis pursuant to 28
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U.S.C. § 1915. (ECF No. 1.) Noting that this request was insufficient, the Court ordered
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Plaintiff to resubmit an application. (ECF No. 7.) He has not responded to that request.
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After a review of the record of actions filed by Plaintiff in the United States District Court,
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it was revealed that Plaintiff has filed three or more actions that were dismissed for failure
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to state a claim upon which relief may be granted, which could subject him to Section
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1915(g)’s three strike rule.1 The Court issued an Order to Show Cause ordering Plaintiff
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to show cause why he did not meet the three-strike criteria, why the Court should not deny
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Plaintiff in forma pauperis status pursuant to 28 U.S.C. § 1915(g), and why the action
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should not be dismissed without prejudice to allow refiling with the submission of the
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$350.00 filing fee in full. (ECF No. 8.) Plaintiff was given thirty days to respond. In that
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Order, the Court also took judicial notice of three prior actions dismissed for failure to state
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a claim for which relief can be granted under Section 1983:
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2:03-cv-01566-FDC-PAN (PC) (E.D. Cal.) (dismissed by Order dated February 2, 2004 for
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failure to state a claim), Kelley v. Ferguson, 1:07-cv-00082-AWI-WMW (PC) (E.D. Cal.)
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(dismissed by Order dated September 20, 2007 for failure to state a claim), Kelley v.
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Peeler, 1:07-cv-00081-SMS (PC) (E.D. Cal.) (dismissed by Order dated March 19, 2009
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for failure to state a claim).
Kelley v. Donahoo,
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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . .
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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or
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detained in any facility, brought an action or appeal in a court of the United States that was
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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which
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relief may be granted, unless the prisoner is under imminent danger of serious physical
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injury.” Plaintiff is subject to section 1915(g) and is precluded from proceeding in forma
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pauperis unless he is, at the time the complaint is filed, under imminent danger of serious
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physical injury.
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The Court has reviewed Plaintiff’s complaint and finds that Plaintiff does not meet
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the imminent danger exception. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
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2007). Plaintiff states that his wheelchair was taken, that he was removed from DPW
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status, and that his medications were discontinued. However, he also states that the
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“This subdivision is com m only known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or
appeals, brought while the plaintiff was a prisoner, which were dism issed ‘on the ground that [they were]
frivolous, m alicious, or fail[ ] to state a claim ’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g),
a prisoner with three strikes or m ore cannot proceed [in form a pauperis].” Andrews v. King, 398 F.3d
1113, 1116 n.1 (9th Cir. 2005).
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wheelchair was returned to him and that he was again placed on DPW status. Apparently,
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his medications were not resumed along with his status; however, while Plaintiff states that
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he is in pain, he does not state why or offer any other description of the pain or cause of
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the pain. The Court also notes that he made no request for any kind of injunctive relief in
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relation to the medication or otherwise. If Plaintiff truly believed he was in imminent danger
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of physical injury, he presumably would have sought an injunction. See Young v. Parks,
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2009 WL 1371811, *2 (E.D.Cal. May 15, 2009). Because Plaintiff alleges no facts
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supporting a finding that he is under imminent danger of serious physical injury, Plaintiff
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is ineligible to proceed in forma pauperis in this action.
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Accordingly, it is HEREBY ORDERED that:
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1.
Plaintiff’s request to proceed in forma pauperis in this action is DENIED;
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2.
This action is DISMISSED WITHOUT PREJUDICE to refiling with the
submission of the $350.00 filing fee in full;
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3.
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application materials; and
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4.
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Clerk to VACATE Order requiring Plaintiff to resubmit in forma pauperis
Clerk to close case.
IT IS SO ORDERED.
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Dated:
1j0bbc
June 6, 2011
UNITED STATES MAGISTRATE JUDGE
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