United States District Court, S.D. California
ANTHONY A. SHARP, CDCR #K-41609, Plaintiff,
DIANNE JACOB, et al., Defendants.
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS
BARRED BY 28 U.S.C. § 1915(g); [Doc., 2] DISMISSING
CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
A. SHARP (“Plaintiff”), a prisoner incarcerated
at the Correctional Training Facility in Soledad, California,
and proceeding pro se, filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 on April 16, 2018.
See Compl., Doc. No. 1.
claims San Diego County Supervisor Dianne Jacob and several
unidentified San Diego Blood Bank officials violated his
right to “life, liberty & happiness” and
imposed cruel and unusual punishment upon him by falsely
informing him he was HIV positive in 1982, 1983, and/or 1984.
Id. at 2-3.
did not prepay the filing fee required to commence a civil
action at the time he filed his Complaint; instead, he has
filed a Motion for Leave to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a)
(Doc. No. 2).
Motion to Proceed IFP
Standard of Review
persons, not just prisoners, may seek IFP status.”
Moore v. Maricopa County Sheriff's Office, 657
F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff,
however, “face … additional hurdle[s].”
in addition to requiring prisoners to “pay the full
amount of a filing fee, ” in “monthly
installments” or “increments” as provided
by 28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels,
__ U.S. __, 136 S.Ct. 627, 629 (2016); Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison
Litigation Reform Act (“PLRA”) amended section
1915 to preclude the privilege to proceed IFP:
. . . if [a] 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 can be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). “This subdivision is commonly
known as the ‘three strikes' provision.”
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP.” Id.; see also Andrews
v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007)
(hereafter “Cervantes”) (under the PLRA,
“[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three
strikes rule[.]”). The objective of the PLRA is to
further “the congressional goal of reducing frivolous
prisoner litigation in federal court.” Tierney v.
Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
“[S]ection 1915(g)'s cap on prior dismissed claims
applies to claims dismissed both before and after the
statute's effective date.” Id. at 1311.
are prior cases or appeals, brought while the plaintiff was a
prisoner, which were dismissed on the ground that they were
frivolous, malicious, or failed to state a claim, ”
Andrews, 398 F.3d at 1116 n.1 (internal quotations
omitted), “even if the district court styles such
dismissal as a denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008). When courts “review a dismissal to
determine whether it counts as a strike, the style of the
dismissal or the procedural posture is immaterial. Instead,
the central question is whether the dismissal ‘rang the
PLRA bells of frivolous, malicious, or failure to state a
claim.'” El-Shaddai v. Zamora, 833 F.3d
1036, 1042 (9th Cir. 2016) (quoting Blakely v.
Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
prisoner has accumulated three strikes, section 1915(g)
prohibits his pursuit of any subsequent IFP civil action or
appeal in federal court unless he faces “imminent
danger of serious physical injury.” See 28
U.S.C. § 1915(g); Cervantes, 493 F.3d at
1051-52 (noting § 1915(g)'s exception for IFP
complaints which “make a plausible allegation ...