Barger v. Gipson

Filing 2

ORDER DISMISSING Action, Without Prejudice, Pursuant To 28 U.S.C. § 1915(G) (Doc. 1 ), signed by District Judge Lawrence J. O'Neill on 1/14/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER aka
GARY FRANCIS FISHER,

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Plaintiff,
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Case No. 1:15-cv-00055-LJO-SKO (PC)
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, PURSUANT TO 28 U.S.C. '
1915(G)

v.
(Doc. 1)

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GIPSON,
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Defendant.
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_____________________________________/
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Plaintiff Gary Dale Barger aka Gary Francis Fisher, # F85263, a state prisoner proceeding

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18 pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 12, 2015. Plaintiff is
19 subject to 28 U.S.C. 1915(g), which provides that “[i]n no event shall a prisoner bring a civil
20 action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or
21 detained in any facility, brought an action or appeal in a court of the United States that was
22 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
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23 may be granted, unless the prisoner is under imminent danger of serious physical injury.”

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Plaintiff has at least three dismissals which qualify as final strikes under section 1915(g). Silva. The Court takes
judicial notice of the following United States District Court cases: Barger aka Fisher v. FBI, et al., 1:13-cv-00414LJO-SAB (E.D.Cal.) (dismissed for failure to state a claim on Jul. 26, 2013); Barger aka Fisher v. FBI, et al., 1:13-cv00535-DLB (E.D.Cal.) (dismissed for failure to state a claim on Nov. 21, 2013); and Fisher v. Bivens, 6 Unknown
Agents, et al., 2:14-cv-01439-UA(MAN) (C.D.Cal.) (dismissed for failure to state a claim on Mar. 6, 2014).

The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the

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2 imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 1055-56
3 (9th Cir. 2007). If Plaintiff wishes to pursue this action, he must first pay the $400.00 filing fee.
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Accordingly, the Court HEREBY ORDERS as follows this action is DISMISSED, without

5 prejudice to re-filing accompanied by the $400.00 filing fee.
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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

January 14, 2015

UNITED STATES DISTRICT JUDGE
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Plaintiff is currently incarcerated at the California Health Care Facility in Stockton. Plaintiff’s allegations concern
events which occurred at California State Prison-Corcoran approximately four years ago, and his complaint presents
no allegations that he is under imminent danger of serious physical injury.

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