Barger v. Director of OPS of CDCR

Filing 11

ORDER DISMISSING Action, WITHOUT PREJUDICE, to Refiling With Payment of Filing Fee 5 , 6 , signed by District Judge Lawrence J. O'Neill on 10/28/14. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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KERN COUNTY SUPERIOR COURT, et al., )
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Defendants.
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GARY DALE BARGER,
Also known as Gary Fisher

Case No.: 1:14-cv-01667-LJO-SAB (PC)
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, TO REFILING WITH PAYMENT
OF FILING FEE
[ECF Nos. 5, 6]

Plaintiff Gary Dale Barger is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant complaint on September 15, 2014, in the United States District Court

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for the United States District Court for the Northern District of California. The case was transferred to

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this Court on October 22, 2014.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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II.

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TRHEE-STRIKES PROVISION OF 28 U.S.C. § 1915
Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action … under this

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section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

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brought an action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is

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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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III.

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DISCUSSION
Although Plaintiff neither submitted an application to proceed in forma pauperis or paid the

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filing fee, a review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) and

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is precluded from proceeding in forma pauperis unless he was, at the time the complaint was filed,

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under imminent danger of serious physical injury.1

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The Court has reviewed Plaintiff’s complaint and finds that he does not meet the imminent

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danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Although not

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The Court takes judicial notice of the following cases which count as strikes: 1) Fisher v. McGee, 2:13-cv-08137-USMAN (C.D. Cal.) (dismissed on December 11, 2013, as barred by Heck v. Humphrey and for naming immune defendants);
2) Barger v. FBI, 1:13-cv-00535-DLB (E.D. Cal.) (dismissed on November 21, 2013, for failure to state a claim); 3) Fisher
v. FBI, 1:13-00414-LJO-SAB (E.D. Cal.) (dismissed on July 26, 2013, for failure to state a claim); and 4) Fisher v. Bivens,
Six Unknown Agents, 2:14-cv-01439-UA-MAN (C.D. Cal.) (dismissed on March 6, 2014, for failure to state a claim). See
also Barger v. Kern County Superior Court, 1:14-cv-01071-DLB PC (E.D. Cal.) (dismissal of action on August 13, 2014,
after finding plaintiff, Gary Barger, suffered three or more strikes under 28 U.S.C. § 1915(g)).

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entirely clear as Plaintiff’s complaint is at times incoherent and illegible, Plaintiff’s complaint

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challenges various claims against several individuals at various prisons and times. Plaintiff raises

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several claims, including access to the courts, lack of library access, challenge to inmate appeals

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process, conspiracy, medical treatment, retaliation, and interference with his mail.

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Plaintiff fails to allege specific facts in the complaint indicating that he was under imminent

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danger at the time he filed the complaint. Based on the foregoing, the Court finds that Plaintiff fails to

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allege the imminent danger of serious physical injury necessary to bypass § 1915(g)’s restriction on

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filing suit without prepayment of the filing fee. In this instance, Plaintiff has not paid the $400.00

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filing fee and the action must be dismissed.

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IV.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is DISMISSED without prejudice to refiling upon payment of the $400.00 fee;
and

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2. Plaintiff’s September 15, 2014, motion for appointment of counsel is DENIED as moot.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

October 28, 2014

UNITED STATES DISTRICT JUDGE
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