Kelly v. Sullivan et al

Filing 11

ORDER OF DISMISSAL denying 3 Motion for Entry of Default; denying 4 Motion for Leave to Proceed in forma pauperis; denying 8 Motion for Leave to Proceed in forma pauperis; granting 2 Motion to Amend/Correct ;. Amended Complaint due by 11/12/2019. (Illston, Susan) (Filed on 10/3/2019) (Additional attachment(s) added on 10/3/2019: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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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-03138-SI ORDER OF DISMISSAL v. Re: Dkt. Nos. 2, 3, 4, 8 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 26 27 28 Kelly did not respond to the order to show cause. He has not provided any reason not to impose the restrictions of § 1915(g) on him. 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 Nos. 4, 8. This action is DISMISSED for failure to pay the filing fee. The 7 dismissal is without prejudice to Kelly asserting his claims in a new complaint for which he pays 8 the full filing fee at the time he files that action. Kelly’s motion to amend to provide the name of a defendant in his complaint is GRANTED. 10 Docket No. 2. The amendment is inconsequential, however, because the action is being dismissed. 11 United States District Court Northern District of California 9 Kelly’s motion for entry of default is DENIED because this action is being dismissed. 12 Docket No. 3. 13 The clerk shall close the file. 14 IT IS SO ORDERED. 15 16 17 Dated: October 3, 2019 ______________________________________ SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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