Barger v. United States of America, et al.
Filing
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FINDINGS and RECOMMENDATION Recommending That Plaintiff Pay the $400 Filing Fee for This Action, signed by Magistrate Judge Stanley A. Boone on 7/21/17: 21-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GARY DALE BARGER,
also known as Gary Fisher and Sonny Barger )
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Plaintiff,
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v.
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UNITED STATES OF AMERICA, et al.,
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Defendants.
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Case No.: 1:17-cv-00964-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING THAT PLAINTIFF PAY
THE $400 FILING FEE FOR THIS ACTION
Plaintiff Gary Dale Barger is appearing pro se in this civil rights action pursuant to 42 U.S.C. §
1983.
Plaintiff filed the instant complaint on June 27, 2017, in the United States District Court for the
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United States District Court for the Northern District of California. The case was transferred to this
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Court on July 17, 2017.
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I.
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SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,
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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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II.
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TRHEE-STRIKES PROVISION OF 28 U.S.C. § 1915
Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action … under this
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section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
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brought an action or appeal in a court of the United States that was dismissed on the grounds that it is
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frivolous, 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.” 28 U.S.C. § 1915(g).
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III.
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DISCUSSION
Although Plaintiff neither submitted an application to proceed in forma pauperis or paid the
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filing fee, a review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) and
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is precluded from proceeding in forma pauperis unless he was, at the time the complaint was filed,
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under imminent danger of serious physical injury.1
The Court has reviewed Plaintiff’s complaint and finds that he does not meet the imminent
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danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff’s
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The Court takes judicial notice of the following cases which count as strikes: 1) Fisher v. McGee, 2:13-cv-08137-USMAN (C.D. Cal.) (dismissed on December 11, 2013, as barred by Heck v. Humphrey and for naming immune defendants);
2) Barger v. FBI, 1:13-cv-00535-DLB (E.D. Cal.) (dismissed on November 21, 2013, for failure to state a claim); 3) Fisher
v. FBI, 1:13-00414-LJO-SAB (E.D. Cal.) (dismissed on July 26, 2013, for failure to state a claim); and 4) Fisher v. Bivens,
Six Unknown Agents, 2:14-cv-01439-UA-MAN (C.D. Cal.) (dismissed on March 6, 2014, for failure to state a claim). See
also Barger v. Kern County Superior Court, 1:14-cv-01071-DLB PC (E.D. Cal.) (dismissal of action on August 13, 2014,
after finding plaintiff, Gary Barger, suffered three or more strikes under 28 U.S.C. § 1915(g)).
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complaint challenges his underlying criminal conviction. Plaintiff fails to allege specific facts in the
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complaint indicating that he was under imminent danger at the time he filed the complaint. Based on
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the foregoing, the Court finds that Plaintiff fails to allege the imminent danger of serious physical
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injury necessary to bypass § 1915(g)’s restriction on filing suit without prepayment of the filing fee.
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IV.
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RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff be required to pay the
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$400.00 filing fee within thirty days of service of the Court’s order adopting this Findings and
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Recommendation.
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This Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with this Findings and Recommendation, Plaintiff may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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July 21, 2017
UNITED STATES MAGISTRATE JUDGE
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