Sharp v. Dumanis et al

Filing 5

ORDER Denying 4 Motion for Leave to Proceed in forma pauperis; and Dismissing Civil Action Without Prejudice. The Clerk of the Court is directed to close the case. Signed by Judge Cynthia Bashant on 1/4/18. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ANTHONY A. SHARP,
CDCD #K-41609,

Case No.: 17-cv-2460-BAS-NLS

14

ORDER:

Plaintiff,

13
v.

(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 4]; and

15
16
17

BONNIE M. DUMANIS, et al.,
Defendants.

(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a);

18
19
20

Plaintiff Anthony A. Sharp, a prisoner currently detained at Salinas Valley State

21

Prison located in Soledad, California, has filed a civil rights Complaint (“Compl.”)

22

pursuant to 42 U.S.C. §1983. (ECF No. 1.) Plaintiff alleges that his constitutional rights

23

were violated by the former San Diego District Attorney and unnamed San Diego Deputy

24

District Attorneys. (See Compl. at 1–2.) Plaintiff has not prepaid the full civil filing fee

25

required by 28 U.S.C. §1914(a). This Court previously dismissed Plaintiff’s action for

26

failure to submit a proper Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 3.)

27

Although Plaintiff has filed a new Motion to Proceed IFP (ECF No. 4) which complies

28

1
17cv2460

1

with the requirements applicable to prisoners seeking IFP status, the Court concludes that

2

Plaintiff cannot in fact seek IFP status because he is barred from doing so.

3

I.

THE MOTION TO PROCEED IFP IS BARRED BY SECTION 1915(g)

4

A.

5

All parties instituting any civil action, suit or proceeding in a district court of the

6

United States, except an application for writ of habeas corpus, must pay a filing fee of

7

$400.1 See 28 U.S.C. §1914(a). The action may proceed despite a plaintiff’s failure to

8

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

9

§1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

10

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “Prisoners” like Plaintiff, however, “face an

11

additional hurdle.” 2 Moore v. Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th

12

Cir. 2011). In addition to requiring prisoners to “pay the full amount of a filing fee,” in

13

“increments” as provided by 28 U.S.C. §1915(a)(3)(b), Williams v. Paramo, 775 F.3d

14

1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended Section

15

1915 to preclude the privilege to proceed IFP:

16

Legal Standard

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,

17
18
19
20
21
22
23
24
25
26
27
28

1

In addition to the $350 statutory fee, civil litigants must pay an additional
administrative fee of $50. See 28 U.S.C. §1914(a) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule, §14 (eff. June 1, 2016)). The additional $50
administrative fee does not apply to persons granted leave to proceed IFP. Id.
Consistent with this Court’s prior order dismissing Plaintiff’s first motion to
proceed IFP (ECF No. 3), Plaintiff has submitted a motion to proceed IFP which contains
the trust account certificate required of prisoners seeking IFP status (see ECF No. 4.)
Normally, the Court would proceed to assess the applicable filing fee based on the
information reflected in the motion and the trust account certificate. However, in light of
Plaintiff’s failure to satisfy this additional hurdle, the Court cannot grant IFP status to the
Plaintiff and declines to determine the amount of fees he would be required to pay if he
could proceed IFP.
2

2
17cv2460

1

malicious, or fails to state a claim upon which relief can be granted,
unless the prisoner is under imminent danger of serious physical injury.

2

“This subdivision is commonly known as the ‘three strikes’

3

28 U.S.C. §1915(g).

4

provision.”

5

“Andrews”). “Pursuant to §1915(g), a prisoner with three strikes or more cannot proceed

6

IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

7

“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

8

suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective

9

of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation

10

in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection

11

1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after

12

the statute’s effective date.” Id. at 1311.

Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter

13

“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which

14

were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”

15

Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court

16

styles such dismissal as a denial of the prisoner’s application to file the action without

17

prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

18

Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) from

19

pursuing any other IFP action in federal court unless he can show he is facing “imminent

20

danger of serious physical injury.” See 28 U.S.C. §1915(g); Cervantes, 493 F.3d at 1051-

21

52 (noting §1915(g)’s exception for IFP complaints which “make[] a plausible allegation

22

that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).

23

B.

24

Plaintiff cannot satisfy Section 1915(g)’s bar on IFP status applicable to prisoners

25

with three strikes who fail to show exigent circumstances that warrant IFP status. As an

26

initial matter, this Court has determined that Plaintiff has brought at least three prior civil

Application to Plaintiff

27
28

3
17cv2460

1

actions3 which were dismissed on the grounds that they were frivolous, malicious, or failed

2

to state a claim upon which relief may be granted. See 28 U.S.C. §1915(g). These cases

3

and orders of dismissal are:

4



Sharp v. Corcoran Medical Staff, et al., No. 99-cv-5550 OWW (DLB)

5

(E.D. Cal.): complaint dismissed sua sponte on March 24, 2000 for

6

failure to state a claim upon which relief can be granted per 28 U.S.C.

7

§1915(e)(2)(B)(ii)) (ECF No. 10) (strike one);

8



Sharp v. Mason, et al., No. 03-cv-1354 EJG (DAD) (E.D. Cal.):

9

complaint dismissed sua sponte on September 5, 2003 for failure to

10

state a claim upon which relief can be granted (ECF No. 12) (strike

11

two); and

12



Sharp v. Arcamone, No. 04-cv-0595 FDL (GGH) (E.D. Cal.): grant on

13

March 21, 2005 of Defendant’s motion to dismiss Plaintiff’s complaint

14

for failure to state a claim upon which relief can be granted (ECF No.

15

17) (strike three).

16

A court “‘may take notice of proceedings in other courts, both within and without the

17

federal judicial system, if those proceedings have a direct relation to matters at issue.’”

18

Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,

19

285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria

20

Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Taking judicial notice

21

of these cases, it is clear to the Court that Plaintiff has, while incarcerated, accumulated at

22

least the three “strikes” permitted pursuant to Section 1915(g). Therefore, IFP status will

23

be barred unless he is “under imminent danger of serious physical injury.” 28 U.S.C.

24
25
26
27
28

3

A review of PACER indicates that Plaintiff has filed at least twenty (20) prisoner
civil rights cases in the Central, Eastern, and Southern Districts of California since 1995.
See https://pcl.uscourts.gov/pcl/pages/welcome.jsf.
4
17cv2460

1

§1915(g).

2

However, Plaintiff has failed to show that he meets Section 1915(g)’s exception to

3

the bar on IFP status for prisoners in his position. The Court has carefully reviewed

4

Plaintiff’s Complaint and has ascertained that it does not contain “plausible allegations”

5

which suggest he “faced ‘imminent danger of serious physical injury’ at the time of filing.”

6

Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. §1915(g)). Because of this failure,

7

Plaintiff is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493

8

F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. §1915(g) “does not

9

prevent all prisoners from accessing the courts; it only precludes prisoners with a history

10

of abusing the legal system from continuing to abuse it while enjoying IFP status”); see

11

also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to

12

proceed IFP is itself a matter of privilege and not right.”).

13

III.

CONCLUSION AND ORDER

14

For the reasons set forth above, the Court hereby DENIES Plaintiff’s Motion to

15

Proceed IFP (ECF No. 4) as barred by 28 U.S.C. §1915(g). The Court DISMISSES this

16

civil action sua sponte without prejudice for failure to prepay the $400 civil and

17

administrative filing fees required by 28 U.S.C. §1914(a). The Clerk of the Court is

18

directed to close the case.

19

IT IS SO ORDERED.

20

DATED: January 4, 2018

21
22
23
24
25
26
27
28

5
17cv2460