Sharp v. Jacob et al
Filing
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ORDER Denying 2 Motion to Proceed in Forma Pauperis as Barred by 28 U.S.C. § 1915(g); Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court denies Plaintiff's Motion to P roceed IFP as barred by 28 U.S.C. § 1915(g); dismisses this civil action without prejudice based on Plaintiff's failure to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); certifie s that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and directs the Clerk of Court to close the file. Signed by Judge Michael M. Anello on 5/29/2018. (All non-registered users served via U.S. Mail Service)(rmc)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 3:18cv00737-MMA-WVG
ANTHONY A. SHARP,
CDCR #K-41609,
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g);
Plaintiff,
vs.
[Doc. No. 2]
DIANNE JACOB, et al.,
Defendants.
DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
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ANTHONY A. SHARP (“Plaintiff”), a prisoner incarcerated at the Correctional
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Training Facility in Soledad, California, and proceeding pro se, filed a civil rights
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Complaint pursuant to 42 U.S.C. § 1983 on April 16, 2018. See Compl., Doc. No. 1.
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Plaintiff claims San Diego County Supervisor Dianne Jacob and several
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unidentified San Diego Blood Bank officials violated his right to “life, liberty &
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happiness” and imposed cruel and unusual punishment upon him by falsely informing
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him he was HIV positive in 1982, 1983, and/or 1984. Id. at 2-3.
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3:18cv00737-MMA-WVG
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Plaintiff did not prepay the filing fee required to commence a civil action at the
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time he filed his Complaint; instead, he has filed a Motion for Leave to Proceed In Forma
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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).
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I.
Motion to Proceed IFP
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A.
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“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County
Standard of Review
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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,
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“face … additional hurdle[s].” Id.
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Specifically, in addition to requiring prisoners to “pay the full amount of a filing
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fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.
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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.
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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
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(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP:
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. . . 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 physical injury.
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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”
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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter
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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful
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suits may entirely be barred from IFP status under the three strikes rule[.]”). The
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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner
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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both
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before and after the statute’s effective date.” Id. at 1311.
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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,
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which were dismissed on the ground that they were frivolous, malicious, or failed to state
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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the
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district court styles such dismissal as a denial of the prisoner’s application to file the
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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153
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(9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a
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strike, the style of the dismissal or the procedural posture is immaterial. Instead, the
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central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or
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failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)
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(quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit
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of any subsequent IFP civil action or appeal in federal court unless he faces “imminent
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danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-
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52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation
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that the prisoner faced ‘imminent danger of serious physical injury’ at the time of
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filing.”).
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B.
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As an initial matter, the Court has reviewed Plaintiff’s Complaint, and finds it does
Discussion
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not contain any “plausible allegations” to suggest he “faced ‘imminent danger of serious
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physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C.
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§ 1915(g)). Instead, as described above, Plaintiff’s claims to have been falsely informed
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by unidentified San Diego Blood Bank officials that he had been infected with HIV in the
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early 1980’s, and as a result, has lived in fear and suffered considerable physical and
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emotional turmoil. See ECF No. 1 at 4, 5; ECF No. 5 at 1. Even so, these events occurred
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35 years ago, before he was incarcerated, and are plainly insufficient to plausibly show
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any ongoing or “imminent danger of serious physical injury” at the time he elected to file
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this case, more than three decades later. See id.; see also Thomas v. Ellis, No. 12-CV-
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05563-CW (PR), 2015 WL 859071, at *3 (N.D. Cal. Feb. 26, 2015) (finding no
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“imminent danger” where prisoner’s injuries occurred before incarceration). Section §
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1915(g)’s “imminent danger” exception cannot be triggered solely by complaints of past
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harm. See Cervantes, 493 F.3d at 1053 (“The exception’s use of the present tense,
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combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to
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us that the exception applies if the danger existed at the time the prisoner filed the
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complaint.”); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Luedtke v. Bertrand,
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32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999); Tierney v. Judd, No. CIV. 13-00174 HG-
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RLP, 2013 WL 1668961, at *1 (D. Haw. Apr. 17, 2013).
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And while Defendants typically carry the initial burden to produce evidence
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demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in
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some instances, the district court docket may be sufficient to show that a prior dismissal
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satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id.
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at 1120. That is the case here.
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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case
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No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing
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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.
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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take
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notice of proceedings in other courts, both within and without the federal judicial system,
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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508
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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803
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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council
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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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Therefore, this Court finds that Plaintiff Anthony A. Sharp, identified as CDCR
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#K-41609, while incarcerated, has had at least four prior prisoner civil actions or appeals
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dismissed on the grounds that they were frivolous, malicious, or failed to state a claim
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upon which relief may be granted.
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///
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///
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They are:
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1)
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1:99-cv-05550-OWW-DLB (E.D. Cal., Oct. 25, 1999 Order Dismissing Complaint
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for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A with
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leave to amend) (Doc. No. 7); (E.D. Cal. Feb. 16, 2000 Findings and
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Recommendations [“F&R”] to Dismiss for failure to obey court Order to amend)
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(Doc. No. 9); and (E.D. Cal. March 24, 2000 Order Adopting F&R and Dismissing
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Case) (Doc. No. 10) (strike one);1
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2)
Sharp v. Cal. State Prison Corcoran Medical Staff, et al., Civil Case No.
Sharp v. County of San Diego, et al., Civil Case No. 3:99-cv-01685-J-AJB
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(S.D. Cal., April 4, 2000 Report and Recommendation [“R&R”] Regarding
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Defendants’ Motion to Dismiss Plaintiff’s claims as time-barred pursuant to Fed.
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R. Civ. P. 12(b)(6)) (Doc. No. 24); (S.D. Cal. May 23, 2000 Order Adopting R&R
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and Dismissing First Amended Complaint with prejudice) (Doc. No. 29) (strike
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two);2
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3)
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Cal., August 19, 2003 F&R to Dismiss Amended Complaint for Failing to State a
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Claim pursuant to 28 U.S.C. § 1915A) (Doc. No. 10); (Sept. 5, 2003 Order
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Adopting F&R and Dismissing Action with prejudice for failure to state a claim
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upon which relief can be granted) (Doc. No. 12) (strike three); and
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Sharp v. Mueller, et al., Civil Case No. 2:03-cv-01354-EJG-DAD (E.D.
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See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court
dismisses a complaint on the ground that it fails to state a claim, and (2) the court grants
leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal
counts as a strike under § 1915(g).”).
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See Belanus v. Clark, 796 F.3d 1021, 1053 (9th Cir. 2007) (dismissals for failure to state
a claim because claims were time-barred may be counted as strikes pursuant to 28 U.S.C.
§ 1915(g)).
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4)
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May 23, 2014 F&R to dismiss action for failure to state a cognizable section 1983
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claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A) (Doc. No. 23); (July
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1, 2014 Order Adopting F&R Regarding Dismissal of Action for Failure to State a
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Claim) (Doc. No. 25) (strike four).
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Accordingly, because Plaintiff has, while incarcerated, accumulated more than
Sharp v. Mims, et al., Civil Case No. 2:13-cv-00534-AWI-BAM (E.D. Cal.,
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three “strikes” pursuant to § 1915(g), and he fails to make a “plausible allegation” that he
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faced imminent danger of serious physical injury at the time he filed his Complaint, he is
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not entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d
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at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.
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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes
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prisoners with a history of abusing the legal system from continuing to abuse it while
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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)
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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).3
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II.
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For the reasons explained, the Court:
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Conclusion and Orders
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DENIES Plaintiff’s Motion to Proceed IFP (Doc. No. 2) as barred by 28
U.S.C. § 1915(g);
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2)
DISMISSES this civil action without prejudice based on Plaintiff’s failure
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to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C.
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§ 1914(a);
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3)
CERTIFIES that an IFP appeal from this Order would be frivolous and
therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See
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In fact, Plaintiff has been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in
the Southern District of California before. See Sharp v. Duffy, S. D. Cal. Civil Case No.
3:07-cv-00161-LAB-LSP (March 5, 2007 Order) (Doc. No. 3); Sharp v. Dumanis, et al.,
S.D. Cal. Civil Case No. 3:17-cv-02460-BAS-NLS (Jan. 5, 2018 Order) (Doc. No. 5).
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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,
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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if
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appeal would not be frivolous); and
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IT IS SO ORDERED.
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DIRECTS the Clerk of Court to close the file.
DATE: May 29, 2018
_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge
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