Barger v. CDCR

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 12/8/14 ORDERING that plaintiff shall submit, within 21 days from the date of this order, the appropriate filing fee.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY BARGER,

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No. 2:14-cv-2325 KJN P
Plaintiff,

v.

ORDER

DIRECTOR CDCR,
Defendants.

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

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without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was

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referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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On October 17, 2014, plaintiff filed a certified trust account statement, but did not file an

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application to proceed in forma pauperis. On October 24, 2014, plaintiff was directed to file an

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affidavit to proceed in forma pauperis, and was provided the court’s application form. Thirty

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days have passed, and plaintiff has not filed an application to proceed in forma pauperis.

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Moreover, review of court records reveals that on at least three prior occasions lawsuits

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filed by the plaintiff have been dismissed on the grounds that they were frivolous or malicious or

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failed to state a claim upon which relief may be granted. See Orders filed March 6, 2014, in

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Fisher v. Bivens, Six Unknown Agents, 2:14-cv-1439-UA-MAN (C.D. Cal.) (failure to state a

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claim); December 20, 2013, Barger v. Casey, 2:13-cv-08889-UA-MAN (C.D. Cal.) (frivolous,
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malicious or fails to state a claim upon which relief may be granted); November 21, 2013, in

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Barger v. FBI, 1:13-cv-0535 DLB (E.D. Cal.) (failure to state a claim); and July 26, 2013, in

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Fisher v. FBI, 1:13-cv-0414 LJO SAB (E.D. Cal.) (adopting June 17, 2013 findings that

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deficiencies in plaintiff’s amended complaint cannot be cured by the allegation of other facts).

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Accordingly, plaintiff is precluded from proceeding in forma pauperis in this action unless

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plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff

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has not alleged any facts which suggest that he is under imminent danger of serious physical

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injury.1 Thus, plaintiff must submit the appropriate filing fee in order to proceed with this action.

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff shall submit,

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within twenty-one days from the date of this order, the appropriate filing fee. Plaintiff’s failure to

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comply with this order will result in a recommendation that this action be dismissed.

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Dated: December 8, 2014

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/barg2325.1915g

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Rather, in his complaint, plaintiff claims the trust account office of the CDCR refuses to
provide plaintiff with trust account statements. (ECF No. 1 at 1-2.) The court notes that in
addition to the trust account statement filed herein, a certified trust account statement was also
filed in plaintiff’s Case No. 2:14-cv-2525 on December 1, 2014.
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