Kelley v. Soto et al

Filing 8

ORDER to SHOW CAUSE Regarding Three Strikes signed by Magistrate Judge Gerald B. Cohn on 5/23/2011. Plaintiff's Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PATRICK D. KELLEY, JR.,
Plaintiff,

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ORDER TO SHOW CAUSE REGARDING
THREE STRIKES

v.

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CASE NO: 1:11-cv-00477-GBC (PC)

SOTO, et al.,
THIRTY DAY DEADLINE

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Defendants.
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ORDER

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Patrick D. Kelley, Jr. (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 8, 2011.

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(ECF No. 6.) Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c)(1). (ECF No. 5.) This action proceeds on Plaintiff’s Complaint, which has not yet

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been screened by this Court. No other parties have appeared.

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Plaintiff brings this civil rights action against Defendants A. Zepp-Do, Soto, Vasquez,

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and Fernado. Plaintiff alleges deliberate indifference to his serious medical need in

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violation of the Eighth Amendment.

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A review of the record of actions filed by Plaintiff in the United States District Court

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reveals that Plaintiff has filed three or more actions that were dismissed for failing to state

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a claim upon which relief may be granted.

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Section 1915 of Title 28 of the United States Code governs proceedings in forma
pauperis. Section 1915(g) provides that:
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[i]n no event shall a prisoner bring a civil action . . . under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.
28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions count as strikes under

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Section 1915(g) requires the Court to conduct a “careful examination of the order
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dismissing an action, and other relevant information,” to determine if, in fact, “the action
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was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v.
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King, 398 F.3d 1113, 1121 (9th Cir. 2005).
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The Court takes judicial notice that Plaintiff has had three prior actions dismissed
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for failing to state a claim for which relief can be granted under Section 1983. Those cases
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are: Kelley v. Donahoo, 2:03-cv-01566-FDC-PAN (PC) (E.D. Cal.) (dismissed by Order
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dated February 2, 2004 for failure to state a claim), Kelley v. Ferguson, 1:07-cv-0008213
AWI-WMW (PC) (E.D. Cal.) (dismissed by Order dated September 20, 2007 for failure to
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state a claim), Kelley v. Peeler, 1:07-cv-00081-SMS (PC) (E.D. Cal.) (dismissed by Order
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dated March 19, 2009 for failure to state a claim).
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Generally, a dismissal for failure to prosecute does not fall within the plain language
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of Section 1915(g). However, a court is to carefully evaluate the substance of the
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dismissal and where the merits of the claim have been determined to be frivolous or
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malicious, it counts as a strike. See Andrews, 398 F.3d at 1121; see also O’Neal v. Price,
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531 F.3d 1146, 1152-53 (9th Cir. 2008) (interpreting the term “dismissed” under Section
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1915(g) to include when a trial court denies request to file an action without prepayment
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of the filing fee on the ground that complaint is frivolous, malicious, or fails to state a claim,
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and then subsequently terminates the complain.)
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It appears to the Court that Plaintiff has three or more strikes and became subject
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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, 398 F.3d at 1116 n.1.

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to Section 1915(g) well before Plaintiff filed this action on March 8, 2011. Therefore, the

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Court finds that Plaintiff should be precluded from proceeding in forma pauperis unless he

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is, at the time the complaint is filed, under imminent danger of serious physical injury.

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Because Plaintiff has on three prior occasions brought civil actions that have been

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dismissed for failure to state a claim, the Court HEREBY ORDERS:
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Plaintiff SHALL SHOW CAUSE, within thirty (30) days of the date of service

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of this Order, why the abovementioned actions do not count as “strikes”

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under 28 U.S.C. § 1915(g), why the Court should not deny Plaintiff in forma

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pauperis status pursuant to 28 U.S.C. § 1915(g), and why the action should

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not be dismissed without prejudice to allow Plaintiff to refile with the

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submission of the $350.00 filing fee in full; and
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Plaintiff’s failure to respond to this Order to Show Cause will result in

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dismissal of this action for failure to obey a Court Order pursuant to Local

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Rule 11-110.

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IT IS SO ORDERED.

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Dated:
1j0bbc

May 23, 2011
UNITED STATES MAGISTRATE JUDGE

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