Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sharp v. King

United States District Court, E.D. California

June 28, 2019

ANTHONY A. SHARP, Plaintiff,
v.
AUDREY KING, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S IN FORMA PAUPERIS STATUS BE REVOKED UNDER 28 U.S.C. § 1915(G) AND THAT PLAINTIFF BE REQUIRED TO PAY $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Anthony A. Sharp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 13, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On November 19, 2018, the court issued an order granting Plaintiff's application to proceed in forma pauperis with this action. (ECF No. 5.)

         II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

         28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the 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 may be granted, unless the prisoner is under imminent danger of serious physical injury.”

         III.ANALYSIS

         A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 1915(g), and therefore should be precluded from proceeding in forma pauperis unless Plaintiff was, at the time the Complaint was filed, under imminent danger of serious physical injury. Court records reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that were dismissed as “strikes” under 28 U.S.C. 1915(g). The Court takes judicial notice of the following four cases:

1) Sharp v. Cal. State Prison Corcoran Medical Staff, et al., Civil No. 1:99-cv-05550-OWW-DLB (E.D. Cal., Oct. 25, 1999 Order Dismissing Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A with leave to amend) (ECF No. 7); (E.D. Cal. Feb. 16, 2000 Findings and Recommendations [“F&R”] to Dismiss for failure to obey court Order to amend) (ECF No. 9); and (E.D. Cal. March 24, 2000 Order Adopting F&R and Dismissing Case) (ECF No. 10) (strike one);[1]
2) Sharp v. County of San Diego, et al., Civil No. 3:99-cv-01685-J-AJB (S.D. Cal., April 4, 2000 Report and Recommendation [“R&R”] Regarding Defendants' Motion to Dismiss Plaintiff's claims as time-barred pursuant to Fed.R.Civ.P. 12(b)(6)) (ECF No. 24); (S.D. Cal. May 23, 2000 Order Adopting R&R and Dismissing First Amended Complaint with prejudice) (ECF No. 29) (strike two);[2]
3) Sharp v. Mueller, et al., Civil No. 2:03-cv-01354-EJG-DAD (E.D. Cal., August 19, 2003 F&R to Dismiss Amended Complaint for Failing to State a Claim pursuant to 28 U.S.C. § 1915A) (ECF No. 10); (Sept. 5, 2003 Order Adopting F&R and Dismissing Action with prejudice for failure to state a claim upon which relief can be granted) (ECF No. 12) (strike three); and
4) Sharp v. Mims, et al., Civil No. 1:13-cv-00534-AWI-BAM (E.D. Cal., May 23, 2014 F&R to dismiss action for failure to state a cognizable section 1983 claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A) (ECF No. 23); (July 1, 2014 Order Adopting F&R Regarding Dismissal of Action for Failure to State a Claim) (ECF No. 25) (strike four).

         The court has reviewed the orders dismissing and closing the four cases listed above and finds that the cases were all properly dismissed as “strikes” under 28 U.S.C. 1915(g).

         The availability of the imminent danger exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury must be a real, present threat, not merely speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger” exception is available “for genuine emergencies, ” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

         The court has reviewed Plaintiff's Complaint for this action and finds that Plaintiff does not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint, Plaintiff alleges that in the summer of 2017, when he was incarcerated at Salinas Valley State Prison, he went to sick call because he was not feeling well. He had a persistent cough, fatigue, muscle aches, and loss of appetite. Plaintiff tested positive for exposure to the disease known as Valley Fever. Plaintiff claims that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.