Sharp v. Park

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANTHONY A. SHARP,
Plaintiff,
v.
KYEONG PARK,
Defendant.
Case No. 25-cv-07431-EKL
ORDER TO SHOW CAUSE
Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. He
has applied to proceed in forma pauperis, but it appears that he is three strikes barred and cannot
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g), unless he is under imminent danger of
serious physical injury.
DISCUSSION
Legal Standard
Congress forbids a prisoner from bringing a civil action in forma pauperis under 28 U.S.C.
§ 1915, if the prisoner has while incarcerated or detained in any facility, brought an action or appeal in
federal court on three or more prior occasions, which 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.” 28 U.S.C. § 1915(g). Relying on the statute’s
command that “in no event” may such a prisoner proceed, the Ninth Circuit has explained that this bar
is triggered by a prisoner’s history of filing frivolous litigation rather than by the merits of the current
action. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original).
For purposes of a dismissal that may be counted under Section 1915(g), the phrase “fails to
state a claim on which relief may be granted” parallels the language of Federal Rule of Civil
Procedure 12(b)(6) and carries the same interpretation. Andrews v. King, 398 F.3d 1113, 1121
(9th Cir. 2005). The word “frivolous” refers to a case that is “‘of little weight or importance:
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having no basis in law or fact,’” and the word “malicious” refers to a case “filed with the
‘intention or desire to harm another.’” Id. (citation omitted). Dismissal of an action under Section
1915(g) should only occur when, “after careful evaluation of the order dismissing an [earlier]
action, and other relevant information, the district court determines that the action was dismissed
because it was frivolous, malicious or failed to state a claim.” Id.
Andrews requires that a prisoner be notified of the potential applicability of Section
1915(g), by either the district court or the defendants, but also requires the prisoner to bear the
ultimate burden of persuasion that Section 1915(g) does not bar pauper status for him. Id.
Andrews implicitly allows the court to sua sponte raise the Section 1915(g) problem but requires
the court to notify the prisoner of the earlier dismissals it considers may support a Section 1915(g)
dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the
action. Id. at 1120. A dismissal under Section 1915(g) means that a prisoner cannot proceed with
his action as a pauper under Section 1915, but he still may pursue his claims if he pays the full
filing fee at the outset of the action.
Analysis
Pursuant to Andrews, the Court now gives plaintiff notice that he appears to have amassed
at least six Section 1915(g) dismissals:
1. Sharp v. Koenig, No. 21-cv-6035 RS (N.D. Cal. Sep. 26, 2022) (complaint
dismissed with leave to amend for failure to state a claim (ECF No. 9), case dismissed for failure
to file an amended complaint (ECF No. 10));
2. Sharp v. Commissioner John Koskinen, No. 21-cv-2171 PJH (N.D. Cal. April 8,
2021) (case dismissed for failure to state a claim (ECF No. 5));
3. Sharp v. Mims, No. 13-cv-0534 AWI BAM (E.D. Cal. July 1, 2014) (case
dismissed for failure to state a claim (ECF No. 25));
4. Sharp v. Mason, No. 03-cv-1354 EJG DAD (E.D. Cal. Sep. 5, 2003) (case
dismissed for failure to state a claim (ECF No. 12));
5. Sharp v. County of San Diego, No. 99-cv-1685 AJB (S.D. Cal. May 24, 2000) (case
dismissed because claims were time-barred (ECF Nos. 24, 29)); and
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6. Sharp v. Cal. State Prison Corcoran Medical Staff, No. 99-cv-5550 OWB DLB
(E.D. Cal. March 27, 2000) (complaint dismissed with leave to amend for failure to state a claim
(ECF No. 7), case dismissed for failure to file an amended complaint (ECF Nos. 9, 10)).
The Court has evaluated each of these cases based on their dismissal orders. See Andrews,
398 F.3d at 1120. Under precedent from the Ninth Circuit, each dismissal counts as a strike. See
Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (dismissal for
failure to state a claim constitutes a strike); Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir.
2017) (where complaint is dismissed with leave to amend, and prisoner fails to amend, the
dismissal counts as a strike); Belanus v. Clark, 796 F.3d 1021, 1027-30 (9th Cir. 2007) (dismissals
for failure to state a claim because claims were time-barred may be counted as strikes pursuant to
Section 1915(g)). Plaintiff does not appear entitled to proceed in forma pauperis.
Nor does it appear that plaintiff is entitled to proceed under the imminent danger
exception. The danger faced by the plaintiff must be “clearly related to [the] initial complaint.”
Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (discussing nexus requirement). The
plaintiff must allege that he is in imminent danger of serious physical injury at the time the
complaint is filed, and the allegation must be “plausible.” Andrews v. Cervantes, 493 F.3d 1047,
1053 (9th Cir. 2007); see also id. at 1057 n.11 (recognizing that “assertions of imminent danger . .
. may be rejected as overly speculative or fanciful, when they are supported by implausible or
untrue allegations . . . .”).
In the complaint, plaintiff alleges that in 2019, prior to the COVID-19 pandemic,
defendant Dr. Park treated him for coughing and breathing issues. ECF No. 1 at 5. Defendant
provided medicine for allergies, but plaintiff did not improve, and his condition worsened. Id.
Defendant treated plaintiff in February 2020 and again diagnosed him with allergies. A week
later, plaintiff was hospitalized with COVID-19. Later in 2021 and 2022 plaintiff was again seen
by defendant for coughing who said it was a cold, but plaintiff noted that it had been occurring for
more than three years. Id. Defendant ordered an x-ray that did not reveal any medical issues, but
in 2023 a CT scan revealed that plaintiff had chronic obstructive pulmonary disease. Id. at 5, 8.
Plaintiff seeks money damages due to defendant’s failure to properly diagnose him from 2019 to
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2022. Id. at 3. Based on the complaint which alleges that defendant failed to properly diagnose
him years earlier, it does not appear that plaintiff was in imminent danger at the time of filing this
complaint in 2025.
CONCLUSION
1. In light of plaintiff’s strikes, and because he does not appear plausibly to have been
in imminent danger of physical injury at the time of filing, he is ORDERED TO SHOW CAUSE
within twenty-eight days from the date of service of this order why his motion for leave to
proceed in forma pauperis should not be denied and this action should not be dismissed pursuant
to 28 U.S.C. § 1915(g). In his response, plaintiff may address how he is in imminent danger by
providing specific allegations. He may also address how the six dismissals above do not
constitute strikes under Section 1915(g).
2. If plaintiff is so inclined, he may avoid dismissal of his action by paying the
$405.00 filing fee. The Court notes for plaintiff’s benefit that this order does not constitute a
screening of his claims pursuant to 28 U.S.C. § 1915A. Even if plaintiff pays the full filing fee for
this action, the Court still will be required to conduct an initial review of the pleadings pursuant to
that statute. See 28 U.S.C. § 1915A(a)-(b). Failure to file a timely response or failure to pay the
full filing fee will result in the dismissal of this action.
3. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address by filing a separate paper with the clerk headed “Notice of
Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to
do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: November 17, 2025
Eumi K. Lee
United States District Judge
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