1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES CARL KELLY, Case No. 23-cv-00966-JST
8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. EXTENSION OF TIME; DENYING LEAVE TO PROCEED IN FORMA 10 T. ALLEN, et al., PAUPERIS; REQUIRING FILING FEE IN FULL; DENYING REQUEST FOR 11 Defendants. APPOINTMENT OF COUNSEL 12 Re: ECF Nos. 4, 6, 8
14 Plaintiff, an inmate at California State Prison – Sacramento, has filed a pro se action 15 pursuant to 42 U.S.C. § 1983. On April 13, 2023, the Court ordered Plaintiff to show cause why 16 his request for leave to proceed in forma pauperis (ECF No. 4) should not be denied pursuant to 17 the three strikes provision set forth in 28 U.S.C. § 1915(g). ECF No. 5. Plaintiff has filed a letter 18 that inter alia requests an extension of time to file his response to the Order to Show Cause, ECF 19 No. 6; a declaration in support of his motion to proceed in forma pauperis, ECF No. 7; and a 20 request for appointment of counsel, ECF No. 8. For the reasons set forth below, the Court 21 DENIES Plaintiff’s request for an extension of time to reply to the Order to Show Cause, ECF No. 22 6; DENIES Plaintiff’s request for leave to proceed in forma pauperis, ECF No. 4; DENIES 23 Plaintiff’s request for appointment of counsel, ECF No. 8; and ORDERS Plaintiff to pay the filing 24 fee in full in order to proceed with this action. 25 DISCUSSION 26 I. PLRA’s Three Strikes Provision 27 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 1 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 2 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 3 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 4 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 5 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 6 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he imminent danger 7 exception to the PLRA three-strikes provision requires a nexus between the alleged imminent 8 danger and the violations of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th 9 Cir. 2022). 10 II. Analysis 11 In the Court’s April 13, 2023 Order to Show Cause, the Court found that Plaintiff had at 12 least three cases dismissed on the grounds that they were frivolous, malicious, or failed to state a 13 claim upon which relief may be granted: (1) Kelly v. Sao, E. D. Cal. No. 18-cv-484 DAD 14 (dismissed for failure to state a claim); (2) Kelly v. Elit, E. D. Cal. No. 18-cv-019 DAD (dismissed 15 for failure to state a claim); and (3) Kelly v. Gyorky, E. D. Cal. No. 11-cv-2142 WBS (dismissed 16 for failure to state a claim and failure to prosecute when plaintiff did not file amended complaint 17 curing deficiencies identified in initial complaint). ECF No. 5 at 2-3. The Court also found that 18 the complaint did not allege that Plaintiff was in imminent danger of serious physical injury at the 19 time he filed this action, February 21, 2013, because he sought relief for events that occurred in 20 2021 and 2022, while he was housed at Salinas Valley State Prison, where he is no longer housed. 21 ECF No. 5 at 3-4. 22 Plaintiff has since filed three pleadings: ECF Nos. 6, 7, 8. 23 In ECF No. 6, Plaintiff states that his complaint misidentified the date of the incident, 24 which occurred on July 28, 2022, not July 23, 2022, and that he is requesting camera footage from 25 the D1-Clinic hallway and the D-1 holding cell, that will show the sexual abuse, excessive force, 26 and assault that he suffered. Plaintiff also requests an extension of time to May 10, 2023, to 27 respond to the Order to Show Cause, stating that he is uncertain if the papers he is sending are 1 that the Court send him what he needs to respond. ECF No. 6. Plaintiff’s request for an extension 2 of time to respond to the Court’s Order to Show Cause is DENIED as moot because ECF No. 7 3 constitutes a response to the Order to Show Cause. The Court DENIES Plaintiff’s request for 4 video footage. The Court cannot conduct discovery on behalf of litigants. The Court DENIES 5 Plaintiff’s request for guidance on responding to court orders. The Court cannot provide legal 6 advice to litigants. 7 In ECF No. 7, which Plaintiff titled, “Declaration In Support Of Motion to Proceed In 8 Forma Pauperis,” Plaintiff states that he has not worked with a pay number since April 7, 1996; 9 that this case holds merit because it is the second time he has been sexually abused, with the first 10 instance of sexual abuse – rape – proven in Ninth Circuit C No. 2:08-cv-ct-01823 CTF, Kelly v. 11 California Medical Facility, and Kelly v. Dr. Sogge; and that he is afraid that his life is in danger. 12 ECF No. 7. The Court construes this filing as a response to the Court’s Order to Show Cause. 13 Plaintiff’s lack of funds is irrelevant as to whether he may proceed in forma pauperis under 14 Section 1915(g). Plaintiff’s conclusory statement that he is afraid for his life does not plausibly 15 allege that Plaintiff was in imminent danger of serious physical injury at the time the complaint 16 was filed. Accordingly, Plaintiff’s request to proceed in forma pauperis, ECF No. 4, is DENIED 17 because, as set forth in the Court’s April 13, 2023 Order to Show Cause, Plaintiff has suffered 18 three “strikes” within the meaning of Section 1915(g), and the complaint does not plausibly allege 19 that Plaintiff was in imminent danger of serious physical injury on February 21, 2013, when the 20 complaint was filed. See generally ECF No. 5. 21 In ECF No. 8, Plaintiff requests appointment of counsel on the grounds that he is unable to 22 afford counsel; that his imprisonment will greatly limit his ability to litigate; that the issues 23 involved in the case are complex and will require significant research; that he can only access the 24 law library once a week; that he is on heavy medication from a heart disease and is a high-risk 25 heart patient; that he has limited knowledge of the law; that he is an eighth grade level “graduate;” 26 that a trial in this case will likely involve conflicting testimony and counsel would better enable 27 Plaintiff to present evidence and cross-examine witnesses; and that he has made repeated efforts to 1 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 2 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 3 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 4 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 5 Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 6 evaluation of the likelihood of the plaintiff’s success on the merits and of the plaintiff’s ability to 7 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 8 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 9 for counsel under § 1915. See id.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES CARL KELLY, Case No. 23-cv-00966-JST
8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. EXTENSION OF TIME; DENYING LEAVE TO PROCEED IN FORMA 10 T. ALLEN, et al., PAUPERIS; REQUIRING FILING FEE IN FULL; DENYING REQUEST FOR 11 Defendants. APPOINTMENT OF COUNSEL 12 Re: ECF Nos. 4, 6, 8
14 Plaintiff, an inmate at California State Prison – Sacramento, has filed a pro se action 15 pursuant to 42 U.S.C. § 1983. On April 13, 2023, the Court ordered Plaintiff to show cause why 16 his request for leave to proceed in forma pauperis (ECF No. 4) should not be denied pursuant to 17 the three strikes provision set forth in 28 U.S.C. § 1915(g). ECF No. 5. Plaintiff has filed a letter 18 that inter alia requests an extension of time to file his response to the Order to Show Cause, ECF 19 No. 6; a declaration in support of his motion to proceed in forma pauperis, ECF No. 7; and a 20 request for appointment of counsel, ECF No. 8. For the reasons set forth below, the Court 21 DENIES Plaintiff’s request for an extension of time to reply to the Order to Show Cause, ECF No. 22 6; DENIES Plaintiff’s request for leave to proceed in forma pauperis, ECF No. 4; DENIES 23 Plaintiff’s request for appointment of counsel, ECF No. 8; and ORDERS Plaintiff to pay the filing 24 fee in full in order to proceed with this action. 25 DISCUSSION 26 I. PLRA’s Three Strikes Provision 27 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 1 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 2 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 3 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 4 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 5 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 6 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he imminent danger 7 exception to the PLRA three-strikes provision requires a nexus between the alleged imminent 8 danger and the violations of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th 9 Cir. 2022). 10 II. Analysis 11 In the Court’s April 13, 2023 Order to Show Cause, the Court found that Plaintiff had at 12 least three cases dismissed on the grounds that they were frivolous, malicious, or failed to state a 13 claim upon which relief may be granted: (1) Kelly v. Sao, E. D. Cal. No. 18-cv-484 DAD 14 (dismissed for failure to state a claim); (2) Kelly v. Elit, E. D. Cal. No. 18-cv-019 DAD (dismissed 15 for failure to state a claim); and (3) Kelly v. Gyorky, E. D. Cal. No. 11-cv-2142 WBS (dismissed 16 for failure to state a claim and failure to prosecute when plaintiff did not file amended complaint 17 curing deficiencies identified in initial complaint). ECF No. 5 at 2-3. The Court also found that 18 the complaint did not allege that Plaintiff was in imminent danger of serious physical injury at the 19 time he filed this action, February 21, 2013, because he sought relief for events that occurred in 20 2021 and 2022, while he was housed at Salinas Valley State Prison, where he is no longer housed. 21 ECF No. 5 at 3-4. 22 Plaintiff has since filed three pleadings: ECF Nos. 6, 7, 8. 23 In ECF No. 6, Plaintiff states that his complaint misidentified the date of the incident, 24 which occurred on July 28, 2022, not July 23, 2022, and that he is requesting camera footage from 25 the D1-Clinic hallway and the D-1 holding cell, that will show the sexual abuse, excessive force, 26 and assault that he suffered. Plaintiff also requests an extension of time to May 10, 2023, to 27 respond to the Order to Show Cause, stating that he is uncertain if the papers he is sending are 1 that the Court send him what he needs to respond. ECF No. 6. Plaintiff’s request for an extension 2 of time to respond to the Court’s Order to Show Cause is DENIED as moot because ECF No. 7 3 constitutes a response to the Order to Show Cause. The Court DENIES Plaintiff’s request for 4 video footage. The Court cannot conduct discovery on behalf of litigants. The Court DENIES 5 Plaintiff’s request for guidance on responding to court orders. The Court cannot provide legal 6 advice to litigants. 7 In ECF No. 7, which Plaintiff titled, “Declaration In Support Of Motion to Proceed In 8 Forma Pauperis,” Plaintiff states that he has not worked with a pay number since April 7, 1996; 9 that this case holds merit because it is the second time he has been sexually abused, with the first 10 instance of sexual abuse – rape – proven in Ninth Circuit C No. 2:08-cv-ct-01823 CTF, Kelly v. 11 California Medical Facility, and Kelly v. Dr. Sogge; and that he is afraid that his life is in danger. 12 ECF No. 7. The Court construes this filing as a response to the Court’s Order to Show Cause. 13 Plaintiff’s lack of funds is irrelevant as to whether he may proceed in forma pauperis under 14 Section 1915(g). Plaintiff’s conclusory statement that he is afraid for his life does not plausibly 15 allege that Plaintiff was in imminent danger of serious physical injury at the time the complaint 16 was filed. Accordingly, Plaintiff’s request to proceed in forma pauperis, ECF No. 4, is DENIED 17 because, as set forth in the Court’s April 13, 2023 Order to Show Cause, Plaintiff has suffered 18 three “strikes” within the meaning of Section 1915(g), and the complaint does not plausibly allege 19 that Plaintiff was in imminent danger of serious physical injury on February 21, 2013, when the 20 complaint was filed. See generally ECF No. 5. 21 In ECF No. 8, Plaintiff requests appointment of counsel on the grounds that he is unable to 22 afford counsel; that his imprisonment will greatly limit his ability to litigate; that the issues 23 involved in the case are complex and will require significant research; that he can only access the 24 law library once a week; that he is on heavy medication from a heart disease and is a high-risk 25 heart patient; that he has limited knowledge of the law; that he is an eighth grade level “graduate;” 26 that a trial in this case will likely involve conflicting testimony and counsel would better enable 27 Plaintiff to present evidence and cross-examine witnesses; and that he has made repeated efforts to 1 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 2 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 3 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 4 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 5 Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 6 evaluation of the likelihood of the plaintiff’s success on the merits and of the plaintiff’s ability to 7 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 8 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 9 for counsel under § 1915. See id. The Court DENIES Plaintiff’s request for appointment of 10 counsel for lack of exceptional circumstances. At this stage in the litigation, Plaintiff’s likelihood 11 of success on the merits is unclear is not clear, and there is no indication that the issues are 12 complex. This denial is without prejudice to the Court’s sua sponte appointment of counsel 13 should circumstances so require, i.e., if this case proceeds to trial. 14 CONCLUSION 15 For the reasons set forth above, the Court orders as follows. 16 1. The Court DENIES as moot Plaintiff’s request for an extension of time to respond 17 to the Court’s April 13, 2023 Order to Show Cause. ECF No. 6. The Court DENIES Plaintiff’s 18 request for appointment of counsel. ECF No. 8. 19 2. The Court DENIES Plaintiff’s request for leave to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915(g). ECF No. 4. Plaintiff may proceed with this action only if he 21 pays the $402 filing and administrative fee in full. Plaintiff must pay the full filing fee within 22 twenty-eight (28) days of the date of this order. If the full filing fee is not received by that date, 23 the Court will dismiss this action without prejudice to Plaintiff re-filing upon payment of the full 24 filing fee. 25 // 26 // 27 // 1 This order terminates ECF Nos. 4, 6, 8. 2 IT IS SO ORDERED. ® 3 Dated: May 25, 2023 es 4 JON S. TIGA 5 nited States District Judge 6 7 8 9 10 11 a 12
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