Kelly v. Sullivan et al

Filing 15

ORDER OF DISMISSAL denying 7 Motion to Appoint Counsel ; denying 9 Motion for Leave to Proceed in forma pauperis. (Illston, Susan) (Filed on 10/3/2019) (Additional attachment(s) added on 10/3/2019: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

JAMES CARL KELLY,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 19-cv-03084-SI
ORDER OF DISMISSAL

v.

Re: Dkt. Nos. 7, 9
P. SULLIVAN, et al.,
Defendants.

12
13

James Carl Kelly, a California prisoner, filed this action and applied to proceed in forma

14

pauperis. On August 9, 2019, the court ordered Kelly to show cause why in forma pauperis status

15

should not be denied and the action should not be dismissed under 28 U.S.C. § 1915(g), which

16

provides that a prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 “if

17

the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

18

an action or appeal in a court of the United States that was dismissed on the grounds that it is

19

frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

20

is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The order to show

21

cause identified three prior dismissals that appeared to count under § 1915(g) and noted that Kelly

22

did not appear to be in imminent danger. The order further stated that, in the alternative to showing

23

cause why § 1915(g) should not apply, Kelly could avoid dismissal by paying the full $400.00 filing

24

fee by the deadline. Docket No. 13.

25

Kelly’s only response to the order to show cause was a one-page filing in which he stated

26

that he was without funds and therefore should be allowed to proceed in forma pauperis. He has

27

not provided any reason not to impose the restrictions of § 1915(g) on him.

28

1

Each of the three earlier dismissals identified in the order to show cause counts as a dismissal

2

for § 1915(g) purposes. Kelly has not paid the filing fee, has not shown that any of the prior

3

dismissals could not be counted under § 1915(g), did not appear to be in imminent danger of serious

4

physical injury at the time he filed his complaint, and does not otherwise show cause why this action

5

could not be dismissed. For the foregoing reasons, Kelly’s in forma pauperis application is

6

DENIED. Docket No. 9. This action is DISMISSED for failure to pay the filing fee. The dismissal

7

is without prejudice to Kelly asserting his claims in a new complaint for which he pays the full filing

8

fee at the time he files that action.

9
10

Kelly’s motion for appointment of counsel is DENIED because the court will not appoint
counsel in a case that is being dismissed. Docket No. 7.

United States District Court
Northern District of California

11

The clerk shall close the file.

12

IT IS SO ORDERED.

13
14
15

Dated: October 3, 2019
______________________________________
SUSAN ILLSTON
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
2