Barger v. CDCR

Filing 9

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's In Forma Pauperis application 6 should be DENIED; Plaintiff should be required to pay the $400.00 Filing Fee in Full within twenty -one days of adoption of these Findings and Reco mmendations, if not paid action will be dismissed re 6 MOTION to PROCEED IN FORMA PAUPERIS filed by Gary Dale Barger ; referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 10/28/14. Objections to F&R due by 11/24/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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CASE No. 1:14-cv-01500-LJO-MJS

Plaintiff,

FINDINGS AND RECOMMENDATIONS
DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REQUIRING
PAYMENT OF FILING FEE IN FULL
WITHIN TWENTY-ONE DAYS

Defendant.

(ECF No. 6)

v.
CDCR,

FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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Plaintiff Gary Dale Barger is a state prisoner proceeding pro se in this civil rights
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action filed pursuant to 42 U.S.C. § 1983. On October 1, 2014, Plaintiff filed a motion to
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proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring

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a civil action . . . under this section if the prisoner has, on 3 or more occasions, while
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incarcerated or detained in any facility, brought an action or appeal in a court of the
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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
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state a claim upon which relief may be granted, unless the prisoner is under imminent
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danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff has had three or more

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actions dismissed as frivolous, as malicious, or for failing to state a claim upon which
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relief maybe granted.1 To meet the imminent danger exception, the complaint must

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plausibly allege “that the prisoner faced „imminent danger of serious physical injury‟ at

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the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007).

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Plaintiff alleges he was beaten by a cellmate on November 27, 2013 and now

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suffers from mild amnesia. A scar on Plaintiff‟s throat and partial paralysis impairs his

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speech and makes swallowing difficult. The paralysis affects Plaintiff “from fingertip to

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fingertip” and “from the hips on down.” (ECF No. 5 at 5.) Plaintiff asserts that his

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physical condition is painful and that merely forcing him to carry on with the pain is a

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violation of his Eighth Amendment rights. (Id.)

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Plaintiff alludes to ongoing inadequate medical treatment for his paralysis but fails

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to explain exactly how the treatment is deficient.

He articulates no specific facts

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indicating that any named Defendant is subjecting him to imminent danger from any

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particular and specific harm. The First Amended Complaint is vague and speculative

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and therefore fails to satisfy the imminent danger exception. See Cervantes, 493 F.3d at

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1057 n. 11 (A prisoner fails to meet the exception where claims of imminent danger are

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conclusory.).

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In any event, the undersigned concludes that Plaintiff‟s in forma pauperis

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application should be denied because he accrued three or more strikes and was not

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under imminent danger of serious physical harm at the time this action was initiated. 28

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U.S.C. § 1915(g). Plaintiff should be provided with the opportunity to pay the filing fee in

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full.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff's in forma pauperis application (ECF No. 6) should be DENIED,

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2.

Plaintiff should be required to pay the $400 filing fee in full within twenty-

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The Court takes judicial notice of the following cases that qualify as strikes pursuant to 28 U.S.C. §
1915(g): Fisher v. FBI, 1:13-cv-00414-LJO-SAB (E.D. Cal.) (dismissed July 26, 2013 for failure to state a
claim); Fisher v. FBI, 1:13-cv-00535-DLB (E.D. Cal.) (dismissed November 21, 2013 for failure to state a
claim); Barger v. Casey, 2:13-cv-08889-UA-MAN (C.D. Cal.) (dismissed December 20, 2013 for failure to
state a claim); and Fisher v. Bivens, 6 Unknown Agents, 2:14-cv-01439-UA-MAN (C.D. Cal.) (dismissed
on March 6, 2014 for failure to state a claim; court acknowledged case nos. 1:13-cv-00414-LJO-SAB,
1:13-cv-00535-DLB, and 2:13-cv-08889-UA-MAN qualified as strikes).

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one days of adoption of these Findings and Recommendations, and
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If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of

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adoption of these Findings and Recommendations, all pending motions should be

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terminated and this action dismissed without prejudice.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with these Findings and Recommendations,

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any party may file written objections with the Court and serve a copy on all parties. Such

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a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

October 28, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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