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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ANTHONY A. SHARP, Case No. 1:21-cv-01549-NONE-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DECLARE PLAINTIFF TO BE A

13 v. THREE-STRIKE LITIGANT AND

REVOKE PLAINTIFF’S IN FORMA

14 BOLIN, et al, PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) 15 Defendants.

16 17 18 19 20 I. 21 BACKGROUND 22 On October 8, 2021, Plaintiff Anthony A. Sharp (“Plaintiff”), a state prisoner proceeding 23 pro se and in forma pauperis (K-41609), initiated this civil rights action in the Northern District of 24 California pursuant to 42 U.S.C. § 1983, against Defendants in their individual and official 25 capacities as employees for the Internal Revenue Service (“IRS”). (ECF No. 1.) Plaintiff alleges 26 he was supposed to receive a Federal Stimulus check of $1,200 but he never received the check, 27 that the check was instead sent to an unknown address with his personal identifying information, 28 and that the IRS Defendants refused to investigate or remedy the situation. (Id.) On October 21, 1 2021, the case was transferred from the Northern District to this Court. (ECF No. 5.) On October 2 22, 2021, the Court granted Plaintiff’s application to proceed IFP. (ECF No. 6.) However, for the 3 reasons set forth herein, the Court recommends that Plaintiff be declared a three-strike litigant 4 pursuant to 28 U.S.C. § 1915(g), that Plaintiff’s IFP status be revoked in this matter, and that 5 Plaintiff be required to pay the full filing fee before he is permitted to proceed in this litigation or 6 face dismissal.1 7 II. 8 LEGAL STANDARD 9 As mentioned, the Court previously granted Plaintiff leave to proceed IFP. (ECF No. 6.) 10 Nevertheless, IFP status may be revoked at any time, either on motion or sua sponte, if the Court 11 determines that such status should not have been granted. See, e.g., Schwerdtfeger v. Paramo, No. 12 19-cv-2255 JLS (JLB), 2021 WL 1186831, at *3 (S.D. Cal. Mar. 30, 2021) (collecting cases). 13 Indeed, Andrews v. King implicitly allows the Court to sua sponte raise the § 1915(g) problem, so 14 long as the court notifies the prisoner of the earlier dismissals considered to support a revocation 15 of IFP status and provides the prisoner an opportunity to be heard on the matter before dismissing 16 the action. See Andrews v. King (King), 398 F.3d 1113, 1120 (9th Cir. 2005). This is because IFP 17 status “is not a constitutional right.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999); see 18 also Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996) (“Leave to proceed [IFP] is a privilege, 19 not a right[;] courts have the discretion to revoke that privilege when it no longer serves its goals”) 20 (citation omitted). Rather, it may be acquired and lost during the course of litigation. Stehouwer 21 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds by Olivares 22 v. Marshall, 59 F.3d 109 (9th Cir. 1995). 23 The plain language of the statute, known as the “Three Strikes” provision of the Prison 24 Litigation Reform Act (PLRA), makes clear that a prisoner is precluded from bringing a civil action 25 or an appeal IFP if he has brought three actions or appeals (or any combination thereof totaling 26 three) that were previously dismissed as frivolous, malicious, or for failure to state a claim. See

27 1 The Court notes Plaintiff consented to magistrate jurisdiction over this litigation on October 8, 2021. (ECF No. 3.) However, the Court additionally notes that not all parties have consented to magistrate jurisdiction because the IRS 28 Defendants have not yet been served or appeared in this matter. 1 Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) (citing § 1915(g)); see also Rodriguez, 169 F.3d 2 at 1178. More specifically, Title 28 U.S.C. § 1915(g) states: 3 In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while 4 incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was 5 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 6 physical injury. 7 28 U.S.C. § 1915(g); see also Coleman v. Tollefson, 575 U.S. 532 (2015) (holding a dismissal that 8 is on appeal counts as a strike during the pendency of the appeal); Lomax, 140 S. Ct. at 1727 (a 9 dismissal for failure to state a claim counts as a strike under § 1915(g), regardless of whether the 10 dismissal was with or without prejudice); Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048 11 (9th Cir. 2016) (reviewing dismissals that count as strikes). 12 To determine whether a dismissal counts as a strike, a reviewing court looks to the 13 dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 14 1106, 1109 (9th Cir. 2013); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 15 (the style of the dismissal or the procedural posture is immaterial). However, a dismissal qualifies 16 as a strike only where the entire action was dismissed for a qualifying reason under the PLRA. 17 Hoffman v. Pulido, 928 F.3d. 1147, 1152 (9th Cir. 2019) (in a multi-claim case, all causes of action 18 must be dismissed under the PLRA) (citing Washington, 833 F.3d at 1057); see also Harris v. 19 Harris, 935 F.3d 670 (9th Cir. 2019) (holding that if one reason supporting a dismissal is not a 20 reason enumerated under § 1915A, then that reason “saves” the dismissal from counting as a strike). 21 If a prisoner has “three strikes” under § 1915(g), he may not proceed without paying the 22 full filing fee unless “the complaint makes a plausible allegation” that the prisoner “faced 23 ‘imminent danger of serious physical injury’ ” at the time his complaint was filed. Andrews v. 24 Cervantes (Cervantes), 493 F.3d 1047, 1051–52 (9th Cir. 2007). In evaluating whether the 25 imminent danger exception applies, the court must construe the prisoner’s “facial allegations” 26 liberally to determine whether the allegations of physical injury are plausible. Williams v. Paramo, 27 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger “may be rejected as 28 overly speculative or fanciful, when they are supported by implausible or untrue allegations.” 1 Cervantes, 493 F. 3d at 1057 n.11 (collecting cases and noting normal preclusion principles will 2 prevent a prisoner from avoiding the three-strike rule based on allegations rejected in an earlier 3 case). 4 III. 5 DISCUSSION 6 A. Plaintiff has Three or More Qualifying Strikes 7 As an initial matter, the Court notes Plaintiff’s IFP status was revoked at least once before 8 in a prior prisoner litigation case on the basis that Plaintiff had accumulated three or more strikes. 9 Sharp v. King, No. 1:18-cv-01556-AWI-GSA (E.D. Cal. 2018). While that court did not order 10 Plaintiff be declared a three-strike litigant (as this Court recommends now), the four cases 11 previously identified as strikes continue to constitute strikes for purposes of the instant findings and 12 recommendations. Moreover, an independent review of the record of actions filed by Plaintiff in 13 the United States District Courts reveals additional actions that were dismissed and qualify as 14 strikes as under § 1915(g), and which also support the Court’s recommendation to declare Plaintiff 15 a three-strike litigant and to revoke his IFP status. The Court takes judicial notice of the following 16 cases which it deems to be strikes:2 17 1. Sharp v. Cal. State Prison Corcoran Med. Staff, No. 1:99-cv-05550-OWW-DLB 18 (E.D. Cal. 1999) 19 Plaintiff filed this prisoner civil action while incarcerated at California State Prison- 20 Corcoran. The magistrate judge screened the complaint pursuant to 28 U.S.C. § 1915(e)(2) and 21 found the complaint failed to state a claim but granted Plaintiff leave to amend. On March 24, 22 2000, the court dismissed the action following Plaintiff’s failure to file an amended complaint and 23 entered judgment on March 27, 2000. 24 The Ninth Circuit has held that where a court dismisses a complaint for failure to state a 25

2 Pursuant to Federal Rule of Evidence 201, the court may take judicial notice of “adjudicative facts” (e.g., court 26 records, pleadings, etc.) and other facts not subject to reasonable dispute and either “generally known” in the community or “capable of accurate and ready determination by reference to sources whose accuracy cannot be 27 reasonably questioned.” Fed. R. Evid. 201(b); Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings 28 have a direct relation to matters at issue”) (internal quotation omitted). 1 claim with leave to amend, the court’s subsequent dismissal for failure to comply with a court order 2 by filing an amended complaint constitutes a strike for purposes of § 1915(g). Harris v. Magnum, 3 863 F.3d 1133, 1143 (9th Cir. 2017). Accordingly, this dismissal constitutes a strike. 4 2. Sharp v. Cnty. of San Diego, No. 3:99-cv-01685-J-AJB (S.D. Cal. 1999) 5 Plaintiff filed this prisoner action while incarcerated at California State Prison-Corcoran. 6 The magistrate judge recommended granting the appearing defendants’ motion to dismiss pursuant 7 to Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim) because it was plain from the 8 face of the complaint that Plaintiff’s claims were time-barred; further, the magistrate judge 9 recommended the non-appearing defendant be dismissed sua sponte under 28 U.S.C. 1915A for 10 the same reasons. The district judge adopted the findings and recommendations in full and 11 dismissed the action with prejudice on May 24, 2000. 12 The Ninth Circuit has held the defense of statute of limitations may be raised by way of a 13 motion to dismiss pursuant to Rule 12(b)(6) so long as the defense is apparent on the face of the 14 complaint. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995); see also 15 King, 398 F.3d at 1121 (“failure to state a claim” language under § 1915 parallels language of Fed. 16 R. Civ. P. 12(b)(6)) for purposes of determining strikes). More recently, the Ninth Circuit expressly 17 noted that dismissals for failure to state a claim because the claims were time-barred may be 18 counted as strikes pursuant to 28 U.S.C. § 1915(g). See Belanus v. Clark, 796 F.3d 1021, 1053 19 (9th Cir. 2015). Accordingly, this dismissal constitutes a strike. 20 3. Sharp v. Mueller, No. 2:03-cv-01354-EJG-DAD (E.D. Cal. 2003) 21 Plaintiff initiated this prisoner litigation action on June 25, 2003. The magistrate judge 22 found the amended complaint failed to state a claim upon which relief could be granted pursuant to 23 28 U.S.C. § 1915A and recommended dismissal without leave to amend. On September 5, 2003, 24 the district judge adopted the findings and recommendations in full, dismissed the action for failure 25 to state a claim, and entered judgment. The dismissal of this action for failure to state a claim 26 constitutes a strike. 28 U.S.C. § 1915(g); Lomax, 140 S. Ct. at 1727; O’Neal v. Price, 531 F.3d 27 1146, 1153 (9th Cir. 2008) (dismissal pursuant to screening order for failure to state a claim 28 constitutes strike under § 1915(g)). 1 4. Sharp v. Mims, No. 1:13-cv-00534-AWI-BAM (E.D. Cal. 2013) 2 Plaintiff filed this prisoner action while incarcerated at the Fresno County Jail. The 3 magistrate judge recommended dismissal of the action for failure to state a cognizable § 1983 claim 4 pursuant to 28 U.S.C. § 1915A. On July 1, 2014, the district judge adopted the findings and 5 recommendations in full and dismissed the action for failure to state a claim. The dismissal of this 6 action for failure to state a claim constitutes a strike. 28 U.S.C. § 1915(g); Lomax, 140 S. Ct. at 7 1727; O’Neal, 531 F.3d at 1153. 8 5. Sharp v. Weber, No. 1:17-cv-00160-DAD-EPG (E.D. Cal. 2017) 9 Plaintiff filed this prisoner civil action while incarcerated at Wasco State Prison. The 10 magistrate judge screened the action pursuant to 28 U.S.C. § 1915(e)(2) and found the complaint 11 to be frivolous and without merit. The district judge dismissed the action on the basis that Plaintiff 12 failed to state a claim and entered judgment on June 12, 2017. This dismissal of this action as 13 frivolous and for failure to state a claim constitutes a strike. 28 U.S.C. § 1915(g); Lomax, 140 S. 14 Ct. at 1727; O’Neal, 531 F.3d at 1153. 15 6. Sharp v. Kelso, No. 2:17-cv-01528-KJN-P (E.D. Cal. 2017) 16 Also on June 12, 2017, Plaintiff filed this purported class action lawsuit, as representative 17 plaintiff, while incarcerated at Salinas Valley State Prison. The magistrate judge recommended 18 summary dismissal of the complaint for failure to state a claim, as well as denial of the request to 19 proceed as a class. On September 28, 2017, the district judge adopted all recommendations in full 20 and dismissed the action. Judgment was entered the following day. The dismissal of this action 21 for failure to state a claim constitutes a strike. 28 U.S.C. § 1915(g); Lomax, 140 S. Ct. at 1727; 22 O’Neal, 531 F.3d at 1153. 23 7. Sharp v. Cueva, No. 2:02-cv-01686-FCD-GGH (E.D. Cal. 2002) 24 Plaintiff initiated this prisoner litigation action on August 8, 2002. While defendants were 25 served in this action and filed an unsuccessful motion for summary judgment based on failure to 26 exhaust administrative remedies, the magistrate judge thereafter sua sponte screened the complaint 27 pursuant to 28 U.S.C. § 1915(e)(2) and found Plaintiff failed to state a claim. The magistrate judge 28 issued findings and recommendations ordering Plaintiff to show cause why the action should not 1 be dismissed for failure to state a claim, then recommended dismissal after Plaintiff filed a response. 2 On January 6, 2005, the district judge adopted the findings and recommendations, dismissed the 3 action for failure to state a claim, and entered judgment. The dismissal of this action for failure to 4 state a claim constitutes a strike. 28 U.S.C. § 1915(g); Lomax, 140 S. Ct. at 1727; O’Neal, 531 5 F.3d at 1153. 6 B. The Imminent Danger Exception Does Not Apply 7 Because plaintiff has filed at least three cases that constitute strikes under § 1915(g), he is 8 precluded from proceeding IFP in this action unless he can demonstrate he was “under imminent 9 danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he availability of the [imminent 10 danger] exception turns on the conditions a prisoner faced at the time the complaint was filed, not 11 at some earlier or later time.” Cervantes, 493 F.3d at 1053. The Court has reviewed Plaintiff’s 12 complaint against the IRS and finds that he has not alleged any facts which suggest he was under 13 imminent danger of serious physical injury at the time he filed his pleading. Williams, 775 F.3d at 14 1190. Accordingly, the imminent danger exception is inapplicable in the instant matter. Id.; 15 Cervantes, 493 F.3d at 1053. 16 IV. 17 CONCLUSION AND RECOMMENDATION 18 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 19 1. Plaintiff be DECLARED a three-strikes litigant pursuant to 28 U.S.C. § 1915(g); 20 2. Plaintiff’s in forma pauperis status be REVOKED pursuant to 28 U.S.C. § 1915(g); 21 3. The Court’s October 22, 2021 order (ECF No. 6), which directed the Director of the 22 California Department of Corrections and Rehabilitation or designee to deduct the 23 filing fee from Plaintiff’s trust account whenever the balance exceeds $10.00, be 24 VACATED; 25 4. The Clerk of the Court be DIRECTED to serve a copy of this order on: (1) the 26 Financial Department, U.S. District Court, Eastern District of California, Fresno 27 Division; and (2) the Director of California Department of Corrections and 28 Rehabilitation or designee via the Court’s electronic case filing system (CM/ECF); 1 and 2 5. Plaintiff be ORDERED TO SUBMIT, within thirty (30) days from any order by 3 the District Court adopting these findings and recommendations, the 4 appropriate filing fee, and Plaintiff be warned that his failure to comply with such 5 order will result in a recommendation that this action be dismissed. 6 These findings and recommendations are submitted to the district judge assigned to this 7 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 8 | (14) days of service of this recommendation, any party may file written objections to these 9 | findings and recommendations with the Court and serve a copy on all parties. Such a document 10 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 11 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 12 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 13 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 14 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. DAM Le 17 | Dated: _January 25, 2022 _ □

UNITED STATES MAGISTRATE JUDGE

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