Barger v. Kern County Superior Court

Filing 8

ORDER DENYING Application to Proceed in Forma Pauperis Under 28 U.S.C. § 1915(g) and DISMISSING Action, WITHOUT PREJUDICE to Refiling With Submission of $400.00 Filing Fee in Full 1 , 3 ; ORDER for Clerk to Close Case, signed by District Judge Anthony W. Ishii on 4/7/17. (CASE CLOSED)(Hellings, J)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 SONNY BARGER II, aka GARY FRANCIS FISHER, aka GARY DALE BARGER, 11 Plaintiff, 12 vs. 13 KERN COUNTY SUPERIOR COURT, 14 et al., 15 Defendants. 1:17-cv-00424-AWI-GSA-PC ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE IN FULL (ECF Nos. 1, 3.) ORDER FOR CLERK TO CLOSE CASE 16 17 I. BACKGROUND 18 Sonny Barger II, aka Gary Francis Fisher, aka Gary Dale Barger (“Plaintiff”) is a state 19 prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff 20 filed the Complaint commencing this action on February 24, 2017, in the United States District 21 Court for the Northern District of California. (ECF No. 1.) On March 13, 2017, Plaintiff filed 22 a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.) On March 23 22, 2017, this case was transferred to the Fresno Division of the Eastern District of California. 24 (ECF No. 5.). 25 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 26 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 27 that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, 28 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 1 1 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 2 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 3 under imminent danger of serious physical injury.” 4 III. ANALYSIS 5 A review of the cases filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. § 6 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time 7 the Complaint was filed, under imminent danger of serious physical injury. Court records 8 reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that 9 were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be 10 granted. 11 2013, for failure to state a claim); (2) Barger v. Casey, 2:13-cv-08889-UA-MAN (C.D. Cal.) 12 (dismissed December 20, 2013, for failure to state a claim; (3) Fisher v. FBI, 1:13-CV-00414- 13 LJO-SAB (E.D. Cal.) (dismissed July 26, 2013, for failure to state a claim); (4) Fisher v. 14 Planet, 2:14-cv-02766-UA-MAN (C.D. Cal.) (dismissed April 17, 2014, for failure to state a 15 claim); and (5) Fisher v. Bivens, 2:14-cv-01439-UA-MAN (C.D. Cal.) (dismissed March 6, 16 2014 for failure to state a claim). See (1) Barger v. FBI, 1:13-cv-00535-DLB (E.D. Cal.) (dismissed November 21, 17 The availability of the imminent danger exception turns on the conditions a prisoner 18 faced at the time the complaint was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 19 2007). “[A]ssertions of imminent danger of less obviously injurious practices may be rejected 20 as overly speculative or fanciful, when they are supported by implausible or untrue allegations 21 that the ongoing practice has produced past harm.” Id. at 1057 n.11. 22 The court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does 23 not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint, 24 Plaintiff alleges that his rights to due process were violated by the Kern County Superior Court, 25 Kamala Harris hired an inept judge, Kings County Superior Court failed to notify him of a 26 court date, his mail and property were confiscated, his television was deliberately broken, 27 correctional officers failed to protect him from assault by another inmate, he was denied 28 medical care, his wheelchair and two walkers were confiscated, and Defendants retaliated and 2 1 discriminated against him. The Complaint appears to span several separate transactions that 2 occurred at different facilities. The Complaint is devoid of any showing that Plaintiff was 3 under imminent danger of serious physical injury at the time he filed the Complaint. See id. 4 Therefore, Plaintiff may not proceed in forma pauperis in this action, and must submit 5 the appropriate filing fee in order to proceed with this action. Accordingly, Plaintiff’s motion 6 to proceed in forma pauperis shall be denied, and this action shall be dismissed, without 7 prejudice to refiling with the submission of the $400.00 filing fee in full. 8 9 ORDER 10 Based on the foregoing, it is HEREBY ORDERED that: 11 1. 12 13 in this action is DENIED; 2. 14 15 Pursuant to 28 U.S.C. § 1915(g), Plaintiff’s motion to proceed in forma pauperis This action is DISMISSED, without prejudice to refiling with the submission of the $400.00 filing fee in full; and 3. The Clerk is directed to CLOSE this case. 16 17 18 IT IS SO ORDERED. Dated: April 7, 2017 SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?