1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES CARL KELLY, Case No. 22-cv-02915-JST

8 Plaintiff,

ORDER TO SHOW CAUSE WHY

9 v. PLAINTIFF SHOULD NOT BE

DENIED LEAVE TO PROCEED IN

10 ATENLY, et al., FORMA PAUPERIS 11 Defendants. Re: ECF No. 4

12 13 Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. 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 28 U.S.C. § 1915(g). 18 DISCUSSION 19 Plaintiff is a frequent litigant. Plaintiff has filed at least fourteen civil rights cases in this 20 district, see, e.g., Kelly v. Gates, C No. 22-cv-03451 JST; Kelly v. Allen, C No. 22-02719 JST; 21 Kelly v. Warden of Salinas Valley State Prison, C No. 22-cv-02647-JST; Kelly v. Quintero et al., 22 C No. 21-cv-5127 JST; Kelly v. Salinas Valley State Prison, et al., C No. 21-cv-04498; Kelly v. Paredes et al, C No. 20-cv-08987 SI; Kelly v. Sullivan, et al., C No. 19-cv-3138 SI; Kelly v. Wood, 23 et al., C No. 19-cv-3086 SI; Kelly v. Sullivan, et al., C No. 19-cv-3084 SI; Kelly v. Sullivan, et al., 24 C No. 19-cv-0125 SI; Kelly v. Warden, et al., C No. 19-cv-0046; Kelly v. Sullivan, et al., C No. 25 19-cv-0045; Kelly v. Sullivan, et al., C No. 18-cv-6386; and Kelly v. Sullivan, C No. 18-cv-6351 26 EMC. He has also filed a number of cases in the Eastern District of California. 27 1 19-cv-0045 SI, Plaintiff was denied leave to proceed in forma pauperis pursuant to 28 U.S.C. 2 § 1915(g). 3 A. 28 U.S.C. § 1915(g) 4 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 5 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 6 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 7 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 8 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 9 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 10 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he imminent danger 11 exception to the PLRA three-strikes provision requires a nexus between the alleged imminent 12 danger and the violations of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th 13 Cir. 2022). 14 The Ninth Circuit requires that the prisoner be given notice of the potential applicability of 15 Section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear 16 the ultimate burden of persuasion that Section 1915(g) does not bar in forma pauperis status for 17 him. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). Andrews implicitly allows the Court 18 to sua sponte raise the Section 1915(g) issue, but requires the Court to notify the prisoner of the 19 earlier dismissals it considers to support a Section 1915(g) dismissal and allow the prisoner an 20 opportunity to be heard on the matter before dismissing the action. See id. A dismissal under 21 Section 1915(g) means that a prisoner cannot proceed with his action in forma pauperis under 22 Section 1915(g). However, the prisoner may still pursue his claims if he pays the full filing fee at 23 the outset of the action. 24 B. Prior Strikes 25 A review of the dismissal orders in Plaintiff’s prior prisoner actions reveals that he has had 26 at least three cases dismissed on the grounds that they were frivolous, malicious, or failed to state 27 a claim upon which relief may be granted. The qualifying cases include: (1) Kelly v. Sao, E. D. 1 18-cv-019 DAD (dismissed for failure to state a claim); and (3) Kelly v. Gyorky, E. D. Cal. No. 11- 2 cv-2142 WBS (dismissed for failure to state a claim and failure to prosecute when plaintiff did not 3 file amended complaint curing deficiencies identified in initial complaint). The Court has 4 reviewed these cases and find that these cases constitute strikes within the meaning of Section 5 1915(g). 6 C. Complaint 7 Plaintiff commenced this action by handing his complaint to prison authorities for mailing 8 on or about May 8, 2022. ECF No. 1 at 71. In the caption, he names the following defendants: 9 wardens Atenly, Allen, and Foss; and doctors Paredes and Gamboa. ECF No. 1 at 1. In the body 10 of the complaint, he names an additional eighteen defendants: SVSP psychologists Tinus and 11 Malhotra; SVSP doctor Danils; SVSP nurses Ronque and Gooby; SVSP correctional officers 12 Ramey, Quintero, and Melendez; appeals coordinator Lomeli; SVSP CEO Padilly; SVSP 13 compliance analyst Esparza; SVSP ADA coordinator Modica; HCARN interviewer RN 14 Villanueva; Health Care Grievance and Appeal Branch chief Gates; SVSP CEO Sawyer; SVSP 15 receiving authority Sawyer; SVSP psychologist Wool; SVSP CTC doctor Zahed Ahmed, and 16 SVSP LVN Adam Ssembaisswe. ECF No. 1 at 5, 7. 17 The complaint makes the following allegations. 18 Plaintiff alleges that on around November 27, 2018, he was beaten by defendants Quintero, 19 Melendez, and Ramey, resulting in internal bleeding in his legs and damage to his left eye. 20 Defendant Gooby inspected Plaintiff’s left eye but did nothing after defendant Quintero stated that 21 Plaintiff did not need medical help. The next day Plaintiff was sent to CTC after complaining of 22 chest pain. From CTC, Plaintiff was sent to an outside hospital, where he was scheduled for a 23 cauterization on December 4, 2018. However, the doctor refused to do the cauterization when 24 Plaintiff refused to take a higher dosage of his medication. On December 6, 2018, Plaintiff passed 25 out while his blood pressure was being taken and Plaintiff was sent to Natividad Hospital for 26 treatment for a hematoma and high blood pressure. Plaintiff remained in the hospital until 27 December 9, 2018. Plaintiff’s legs and left eyes were swollen from being beaten by defendant 1 On or about May 24, 2003, Plaintiff was attacked from behind and raped by an unknown 2 assailant. Plaintiff was prescribed Tylenol 3 with codeine from 2008 until 2017 when he 3 transferred to Kern Valley State Prison. At that point, Plaintiff was told that inmates could not 4 take Tylenol 3 with codeine unless housed in a medical facility. Plaintiff is currently prescribed 5 amitriptyline for his pain, but it does not control his plain and only helps him fall asleep. 6 Defendants Danials, Tinius and Malhotra do not believe that Plaintiff has been raped. Defendants 7 doctors Paredes and Gamboa, and defendants Lomeli, Padilly, Esperza, Mojica, Villanueva, Gates, 8 Sawyer, Wool, and Zahed falsely accuse Plaintiff of taking Tylenol 3 with codeine. 9 Plaintiff has had nine surgeries to address his rectal bleeding stemming from the rape, and 10 is on a blood thinner and could clog up and clot and have a stroke at any time but none of the 11 doctors, including defendant Danils and Dr. Yeh, care. Plaintiff also allege that defendants Danils, 12 Gamboa, and Malhotra incorrectly claim that Plaintiff has a seizure disorder. Plaintiff argues that 13 prison officials should give him an EGG to determine what is causing his violent convulsions and 14 to determine if these convulsions are seizures. Plaintiff also claims that he is afraid to be housed 15 in his current situations because the officers and nurses do not care, he cannot get the correct 16 supplies, and he is forced to use the restroom himself leading to a rash. 17 D. Analysis 18 The complaint does not allege that Plaintiff is in imminent danger of serious physical 19 injury. Plaintiff references events that happened in 2003 and 2018. While Plaintiff also appears to 20 be alleging that he is not currently receiving medical care, thereby putting him at risk for serious 21 physical injury, this claim is contradicted by the exhibits attached to Plaintiff’s complaint. The 22 attached exhibits show that, in the last year, Plaintiff has been seen by a cardiologist and 23 neurologist; has had a cardiac work-up, including electrocardiogram, chest x-rays, and laboratory 24 studies; has had laboratory and imaging done, including a computed tomography scan of the brain; 25 has had his INR levels monitored (ability to clot blood); and prison doctors have prescribed him 26 medications for pain management and his heart condition. ECF No. 1 at 43, 53. 27 In light of the dismissals of three prior actions on the grounds that they were frivolous, 1 appear that Plaintiff was under imminent danger of serious physical injury when he filed this 2 action, Plaintiff is ORDERED TO SHOW CAUSE in writing within twenty-eight days of this 3 || order, why his in forma pauperis application should not be denied. In the alternative, he may pay 4 || the full filing fee of $402.00 by the deadline. 5 CONCLUSION 6 Accordingly, within twenty-eight (28) days of the date of this order, Plaintiff shall show 7 cause why his request for leave to proceed in forma pauperis should not be denied pursuant to the 8 three strikes provision set forth in 28 U.S.C. § 1915. In the alternative, he may pay the $402.00 9 || filing fee in full. Failure to respond in accordance with this order may result in dismissal of this 10 action without further notice to Plaintiff pursuant to Rule 41(b) of the Federal Rules of Civil 11 Procedure for failure to comply with a court order. 12 IT IS SO ORDERED.

13 || Dated: August 16, 2022 14

JON S. TIGAR

15 ited States District Judge 16

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