James Carl Kelly v. Newsome, et al.

Summary

The United States Magistrate Judge recommends denying James Carl Kelly’s application to proceed in forma pauperis under the three-strikes provision of 28 U.S.C. § 1915(g). The court concludes that Kelly had at least three qualifying prior dismissals and had not shown that he was in imminent danger of serious physical injury when he filed the action. The court recommends that Kelly pay the $405 filing fee in full or face dismissal, and allows thirty days for objections.

Holdings

1. Plaintiff had at least three prior qualifying strikes, including dismissals for failure to state a claim and a dismissal for failure to exhaust administrative remedies where that failure was clear from the face of the complaint.
2. Plaintiff did not establish that he was under imminent danger of serious physical injury when he filed the complaint.
3. Plaintiff may not proceed in forma pauperis and must pay the $405 filing fee in full if he wishes to proceed with the action.

Questions Presented

1. Whether Plaintiff had at least three prior actions or appeals that counted as strikes under 28 U.S.C. § 1915(g).
2. Whether Plaintiff qualified for the imminent-danger exception to the three-strikes bar based on the allegations in his complaint.
3. Whether Plaintiff could proceed in forma pauperis or instead had to pay the full filing fee.

Disposition

other