Barger v. Director of OPS of CDCR

Filing 12

ORDER STRIKING AMENDED COMPLAINT 11 , signed by Magistrate Judge Erica P. Grosjean on 05/03/2017. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

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ORDER STRIKING AMENDED COMPLAINT
(ECF NO. 11)

Plaintiff,

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1:17-cv-00438-DAD-EPG (PC)

v.
DIRECTOR OF OPS OF CDCR,

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Defendant.

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Gary Francis Fisher, aka Sonny Barger, II, 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 22, 2017, in the United States District

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Court for the Northern District of California. (ECF No. 1). On March 27, 2017, this case was

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transferred to the Fresno Division of the Eastern District of California. (ECF Nos. 3 & 4). On

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March 30, 2017, the Court issued findings and recommendations, recommending that Plaintiff’s

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application to proceed in forma pauperis be denied because 28 U.S.C. § 1915(g) precludes

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Plaintiff from proceeding in forma pauperis, and that this case be dismissed. (ECF No. 7). On

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April 24, 2017, Plaintiff filed a notice1 dismissing this action without prejudice (ECF No. 9), and

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the case was closed (ECF No. 10).

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On May 1, 2017, Plaintiff filed what appears to be an amended complaint, which the

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Court will strike. Federal Rule of Civil Procedure 12(f) states: “The court may strike from a pleading

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an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court

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may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or,

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if a response is not allowed, within 21 days after being served with the pleading.”

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Here, Plaintiff voluntarily dismissed his case and the case has been closed. Additionally,

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when Plaintiff filed his voluntary dismissal, findings and recommendations were pending,

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recommending that Plaintiff’s application to proceed in forma pauperis be denied and that this case be

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dismissed. Plaintiff did not file an objection to those findings and recommendations.

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Accordingly, based on the foregoing, IT IS ORDERED that Plaintiff’s amended complaint
(ECF No. 11) is STRICKEN from the record.

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IT IS SO ORDERED.
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Dated:

May 3, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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Although Plaintiff titled his notice of dismissal as a “Motion to Close Case,”
the Court construed the request as a notice of dismissal under Rule 41(a)(1)(A)(i) of the Federal
Rules of Civil Procedure.
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