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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SONNY BARGER II,
aka GARY FRANCIS FISHER,
aka GARY DALE BARGER,

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Plaintiff,

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vs.

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KERN COUNTY SUPERIOR COURT,

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et al.,

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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

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I.

BACKGROUND

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Sonny Barger II, aka Gary Francis Fisher, aka Gary Dale Barger (“Plaintiff”) is a state

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prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff

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filed the Complaint commencing this action on February 24, 2017, in the United States District

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Court for the Northern District of California. (ECF No. 1.) On March 13, 2017, Plaintiff filed

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a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.) On March

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22, 2017, this case was transferred to the Fresno Division of the Eastern District of California.

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(ECF No. 5.).

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides

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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has,

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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

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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.”

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III.

ANALYSIS

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A review of the cases filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. §

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1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time

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the Complaint was filed, under imminent danger of serious physical injury. Court records

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reflect that on at least three prior occasions, Plaintiff has brought actions while incarcerated that

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were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be

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granted.

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2013, for failure to state a claim); (2) Barger v. Casey, 2:13-cv-08889-UA-MAN (C.D. Cal.)

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(dismissed December 20, 2013, for failure to state a claim; (3) Fisher v. FBI, 1:13-CV-00414-

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LJO-SAB (E.D. Cal.) (dismissed July 26, 2013, for failure to state a claim); (4) Fisher v.

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Planet, 2:14-cv-02766-UA-MAN (C.D. Cal.) (dismissed April 17, 2014, for failure to state a

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claim); and (5) Fisher v. Bivens, 2:14-cv-01439-UA-MAN (C.D. Cal.) (dismissed March 6,

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2014 for failure to state a claim).

See (1) Barger v. FBI, 1:13-cv-00535-DLB (E.D. Cal.) (dismissed November 21,

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The availability of the imminent danger exception turns on the conditions a prisoner

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faced at the time the complaint was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007). “[A]ssertions of imminent danger of less obviously injurious practices may be rejected

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as overly speculative or fanciful, when they are supported by implausible or untrue allegations

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that the ongoing practice has produced past harm.” Id. at 1057 n.11.

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The court has reviewed Plaintiff’s Complaint for this action and finds that Plaintiff does

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not meet the imminent danger exception. See Andrews, 493 F.3d at 1053. In the Complaint,

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Plaintiff alleges that his rights to due process were violated by the Kern County Superior Court,

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Kamala Harris hired an inept judge, Kings County Superior Court failed to notify him of a

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court date, his mail and property were confiscated, his television was deliberately broken,

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correctional officers failed to protect him from assault by another inmate, he was denied

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medical care, his wheelchair and two walkers were confiscated, and Defendants retaliated and
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discriminated against him. The Complaint appears to span several separate transactions that

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occurred at different facilities. The Complaint is devoid of any showing that Plaintiff was

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under imminent danger of serious physical injury at the time he filed the Complaint. See id.

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Therefore, Plaintiff may not proceed in forma pauperis in this action, and must submit

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the appropriate filing fee in order to proceed with this action. Accordingly, Plaintiff’s motion

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to proceed in forma pauperis shall be denied, and this action shall be dismissed, without

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prejudice to refiling with the submission of the $400.00 filing fee in full.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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in this action is DENIED;
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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

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated: April 7, 2017
SENIOR DISTRICT JUDGE

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