Barger v. CDCR

Filing 11

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 5/28/15 ORDERING that Plaintiffs applications for leave to proceed in forma pauperis (Docs. 2 , 10 ) are DENIED; and Plaintiff shall show cause, in writing, within 30 days of the date of this order, why this action should not be dismissed without prejudice to re-filing upon pre-payment of the filing fees.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY FRANCIS BARGER,

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Plaintiff,
vs.

ORDER

DIRECTOR OF CDCR,
Defendant.

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No. 2:14-cv-2310-CMK-P

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Plaintiff Gary Barger, also known as Gary Fisher, is a state prisoner proceeding

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pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to

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Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served

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or appeared in the action. Pending before the court is plaintiff’s motion for leave to proceed in

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forma pauperis (Docs. 2,10).

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The Prison Litigation Reform Act’s (PLRA) “three strikes” provision provides:

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In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action . . . in a
court of the United States that was dismissed on the ground 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). Thus, when a prisoner plaintiff has had three or more prior actions

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dismissed for one of the reasons set forth in the statute, such “strikes” preclude the prisoner from

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proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas

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petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122

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(9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights

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action, the district court may conclude that it counts as a “strike.” See id. at n.12.

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The court has previously determined that plaintiff is barred from proceeding in

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forma pauperis pursuant to 28 U.S.C. § 1985(g). See Fisher v. Director of OPS of CDCR, Case

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No. 2:14-cv-1323-TLN-EFB P (Doc. 14, 17). In addition, it does not appear that plaintiff was

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under imminent danger of serious physical injury when he filed the instant complaint. See 28

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U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1037, 1055 (9th Cir. 2007). Plaintiff’s

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complaint is convoluted and nearly incomprehensible. It appears that plaintiff is complaining

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about being involuntarily medicated for five months, from February to July 2013, over a year

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prior to the filing of the complaint. There is nothing in the complaint to indicate he was being

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involuntarily medicated at the time he filed the complaint, or that it continued after July 2013.

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The majority of his complaint, however, appears to be a recitation of different remedies available

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with a civil rights case as opposed to a petition for a writ of habeas corpus. His allegations do

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not demonstrate that he suffered from imminent danger of serious physical injury at the time he

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filed his complaint.1 Thus, the imminent danger exception does not apply.

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As plaintiff has not paid the filing fee, and is not eligible to proceed in forma

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pauperis, this action shall be dismissed, without prejudice to re-filing upon prepayment of the

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filing fees. See Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998).

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It further appears that plaintiff’s claims are similar to those raised in a prior action,
case number 2:14-cv-1323-TLN-EFB, and that it is insufficient to state a claim for violation of
his Eighth Amendment rights under 28 U.S.C. § 1983. See Jackson v. McIntosh, 90 F.3d 330,
332 (9th Cir. 1996).
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Therefore, plaintiff must show cause in writing, within 30 days of the date of this

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order, why this action should not be dismissed. Plaintiff is warned that failure to respond to this

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order may result in dismissal of the action for the reasons outlined above, as well as for failure to

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prosecute and comply with court rules and orders. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s application for leave to proceed in forma pauperis (Docs. 2,10)

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Plaintiff shall show cause, in writing, within 30 days of the date of this

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is denied; and

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order, why this action should not be dismissed without prejudice to re-filing upon pre-payment of
the filing fees.

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DATED: May 28, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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