Barger v. Mueller, et al.

Filing 4

FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Motion to Proceed In Forma Pauperis be DENIED and this Action be DISMISSED Without Prejudice to Re-Filing Upon Pre-Payment of the $400 Filing Fee re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Sheila K. Oberto on 5/4/2016. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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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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Plaintiff,

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v.

Case No. 1:16-cv-00444-AWI-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND TO
DISMISS WITHOUT PREJUDICE

MUELLER, et al.,
(Doc. 1)

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Defendants.
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, Gary Dale Barger (a.k.a. Gary Francis Fisher, inmate number F-85263), is a state
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prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.1 Plaintiff

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seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons set forth
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below, the Court finds that Plaintiff has not demonstrated he is eligible to proceed in forma
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pauperis.
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A prisoner may not proceed in forma pauperis:
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if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United
States that 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.

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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, Plaintiff has

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Plaintiff checked the box on the form complaint for proceeding under 28 U.S.C. § 1331; Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971) instead of that for 28 U.S.C. § 1343; 42 U.S.C. § 1983. However,
Plaintiff’s allegations pertain to his incarceration in state prisons and are asserted against state government actors, not
federal government actors and are properly analyzed under standards applicable to claims under § 1983.

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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to

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state a claim upon which relief may be granted. See (1) Fisher v. McGee, 2:13-cv-8137-UA-

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MAN (C.D. Cal.) (dismissed on December 11, 2013, as barred by Heck v. Humphrey, 512 U.S.

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477 (1994)2, and for naming immune defendants); (2) Barger v. FBI, 1:13-cv-535-DLB (E.D.

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Cal.) (dismissed on November 21, 2013, for failure to state a claim); and (3) Fisher v. FBI, 1:13-

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CV-414 LJO-SAB (E.D. Cal.) (dismissed on July 26, 2013, for failure to state a claim).

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The exception under section 1915(g) applies if the complaint makes a plausible allegation

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that the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28

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U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception

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to apply, the court must look to the conditions the “prisoner faced at the time the complaint was

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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner

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allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an

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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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Here, as in Plaintiff’s prior actions, the Complaint is convoluted and nearly

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incomprehensible. (Doc. 1.) Plaintiff is currently housed at the facility he was located when he

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filed this action -- Salinas Valley State Prison (“SVSP”). However, Plaintiff identifies defendants

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from three facilities. Specifically, on the second page of the Complaint, Plaintiff left the lines for

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identifying the first defendant blank and wrote in “1st Watch” at Pelican Bay State Prison

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(“PBSP”) for the second defendant, “3rd Watch” C.O. Phillips at California State Prison in

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Corcoran (“CSP-Cor”) for the third defendant, and “3rd Watch” Henderson Sgt. at SVSP for the

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fourth defendant. (Id., at 2.) Plaintiff thereafter attached pages for three causes of action. (Id., at

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3-5.)

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In Heck, the Supreme Court clarified that a dismissal pursuant to the rule announced therein was a denial of “the
existence of a cause of action [under § 1983].” Heck, 512 U.S. at 489. Absent a cause of action, there is no claim
upon which relief can be granted. Dismissals pursuant to Heck, therefore, can reasonably be interpreted as dismissals
for failure to state a claim, and qualify as strikes under 1915(g). Duncan v. Ramirez, No. C 12-6251, 2013 U.S. Dist.
LEXIS 93840, at *4 (N.D. Cal. July 3, 2013); Ortega v. Heitkamp, No. 2:11-cv-2735 GEB CKD, 2013 U.S. Dist.
LEXIS 9246, at *3 (E.D. Cal. Jan. 23, 2013); see also Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir.
2011); Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996);
Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).

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In his first cause of action, Plaintiff checked the boxes raising issues involving mail,

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access to the court, medical care, threat to safety, and also wrote “Attempted murder.” (Id., at 3.)

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It appears that Plaintiff wrote the words “Attempted murder” in hopes that the Court would

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merely glance over the Complaint, see those words, and find that he had met the imminent danger

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exception of § 1915(g). However, Plaintiff’s factual allegations fail to show anything other than

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tampering with his mail.
In the supporting facts section, Plaintiff alleges that his “military mail” was “left hanging”

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at CSP-Cor and that “[t]here is no other reasoning other than these C.O.s are al Qaeda” and that

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the judges in this circuit are “either al Qaeda also or bought off by al Qaeda and CDCR.” 3 (Id.)

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Plaintiff further alleges that it is “not too much to believe people now favor Nation of Islam.

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They have integrated in all walks of life. There are a few ways to tell and one is misappropriate

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non-handling of U.S. Mail and that is non-handling of military mail al Qaeda.” (Id., at 3.)

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Regarding how he was injured by the actions or inactions of the Defendant(s) Plaintiff wrote: “I

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do math on KSCU our Killer Satellite Communication Unit the coordinates of it undelivered then

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al Qaeda gets the.” (Id.)

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In his second cause of action, Plaintiff checked the boxes raising issues involving

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excessive force by an officer as well as a threat to his safety and, this time, twice wrote in

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“attempted murder.” (Id., at 4.) Plaintiff alleges in this cause of action that CDCR is retaliating

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against him and that he has exhausted the inmate appeals process trying to obtain healthcare and

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relief from pain. (Id.) Plaintiff alleges that “the Quack CDCR hires” took his wheelchair away to

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let him know “it was in real time, the real thing” and that he was never interviewed and his

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cellmate “was never given the gist to complete that kind of damage so the cellmate was given the

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wrong sentence.” (Id.) Plaintiff alleges that he “was watched very good to see if [he] progress in

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a meaningful way so [he] was not a threat with a lawsuit.” (Id.) In the section for his injury,

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Plaintiff indicates that he is partly paralyzed and that issue of his “medication or under

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medication” has been exhausted. (Id.)

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All quotes of Plaintiff’s allegations are verbatim.

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In his third cause of action, Plaintiff alleges that his T.V. screen was broken apparently in

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retaliation for his litigious activities and that “Judge Orrick and the San Francisco Division”

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deliberately closed cases that he filed in the Northern Division. (Id., p. 5.)
In his request for relief at the end of the Complaint, Plaintiff writes: “To simply pay my

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legal and physical damage #1 I will never walk in a meaningful way.” (Id. at 6.)

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Plaintiff does not allege he faced imminent danger of serious physical injury at the time he

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filed his Complaint, and there is no plausible basis for concluding such a danger existed. The

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imminent danger exception of § 1915(g), thus does not apply. As Plaintiff has not paid the filing

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fee and is not eligible to proceed in forma pauperis, this action must be dismissed.

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Accordingly, IT IS HERBEY RECOMMENDED that Plaintiff’s motion to proceed in

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forma pauperis be denied and this action be dismissed without prejudice to re-filing upon pre-

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payment of the $400 filing fee.

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These Findings and Recommendations will be 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)(l). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 4, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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