United States District Court, E.D. California
ANTHONY A. SHARP, Plaintiff,
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
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
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.)
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
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
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);
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
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).
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).
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).
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 ...