Sharp v. Park

Background

Anthony A. Sharp, identified as a state prisoner, filed a civil-rights complaint without a lawyer under 42 U.S.C. § 1983. He asked to proceed in forma pauperis, meaning without paying the filing fee at the start of the case.

The court stated that the Prison Litigation Reform Act generally bars a prisoner from proceeding without prepaying the filing fee if the prisoner previously brought three or more federal actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failing to state a claim. The statute contains an exception when the prisoner was under imminent danger of serious physical injury when the complaint was filed.

Potential strikes

The court identified at least six earlier dismissals involving Sharp that appeared to qualify as strikes under 28 U.S.C. § 1915(g). The court said it evaluated those matters based on their dismissal orders. The listed dismissals involved failures to state a claim, including cases dismissed after Sharp did not file an amended complaint. The court stated that, under Ninth Circuit precedent, each of the six dismissals counted as a strike.

Imminent-danger exception

The court also considered whether Sharp qualified for the imminent-danger exception. It explained that the alleged danger must be clearly connected to the complaint and must be a plausible danger of serious physical injury existing when the complaint was filed.

Sharp alleged that Defendant Dr. Park treated him in 2019 for coughing and breathing problems, prescribed allergy medicine, and treated him again in February 2020. Sharp alleged that he was hospitalized with COVID-19 about a week after the February 2020 visit. He further alleged that Dr. Park saw him for coughing in 2021 and 2022, described it as a cold, and ordered an X-ray that did not show medical issues. According to the complaint, a 2023 CT scan later showed chronic obstructive pulmonary disease.

The court concluded that, because Sharp's allegations concerned an allegedly incorrect diagnosis years earlier, he did not appear to have been in imminent danger when he filed this action in 2025.

Order

The court did not yet deny the request to proceed without paying the filing fee or dismiss the action. Instead, it ordered Sharp to show cause within 28 days after service of the order why his request should not be denied and the action dismissed under 28 U.S.C. § 1915(g). Sharp may respond with specific allegations addressing imminent danger and may argue that the six earlier dismissals do not qualify as strikes.

The court stated that Sharp could avoid dismissal by paying the $405 filing fee. It also clarified that the order was not a screening of the claims under 28 U.S.C. § 1915A. Even if Sharp pays the full fee, the court must still conduct an initial review of the pleadings. The court warned that failing to respond on time or failing to pay the full fee would result in dismissal, and that failing to follow court orders could also lead to dismissal for failure to prosecute.