Fisher v. Roukley

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 12/2/14 ORDERING that Plaintiffs September 26, 2014, motion to proceed in forma pauperis 2 is denied. Plaintiff shall, within 21 days from the date of this order, submit the appropriate fee of $400.00 ($350.00 filing fee plus $50.00 administrative 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 FISHER, aka GARY FRANCIS
FISHER, aka GARY DALE BARGER
(CDCR No. F-85263),

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Plaintiff,

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No. 2:14-cv-2417 DAD P

ORDER

v.
R. J. ROUKLEY, et al.,

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Defendants.

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Plaintiff Gary Fisher, also known as Gary Francis Fisher and Gary Dale Barger, is a state

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prisoner proceeding without counsel with a civil rights complaint filed pursuant to 42 U.S.C. §

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1983. Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff

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has consented to magistrate judge jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c), and

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Local Rule 305(a). (See ECF No. 5.)
Review of court records1 reveals that plaintiff is designated a “three strikes litigant” under

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28 U.S.C. § 1915(g), which provides:

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In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any

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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
635 n.1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981).
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facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds 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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Such a designation indicates that plaintiff has brought three or more prior actions that were

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dismissed as frivolous, malicious, or for failure to state a claim, and precludes plaintiff from

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proceeding in forma pauperis in the present action unless he demonstrates that he was under

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imminent danger of serious physical injury when he filed the complaint.

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The undersigned notes that plaintiff has been denied in forma pauperis status due to his

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three-strikes designation in at least five prior cases,2 which together cite several cases in which

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plaintiff’s complaints were dismissed as frivolous, malicious or for failure to state a claim. This

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court has reviewed the basis of the findings in those cases and concurs that plaintiff has suffered

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at least three prior strike dismissals as defined by 28 U.S.C. § 1915(g).3
As a three strikes litigant, plaintiff may not proceed in forma pauperis in the present action

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unless he demonstrates that he was “under imminent danger of serious physical injury” when he

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filed his complaint. 28 U.S.C. § 1915(g). The imminent danger exception applies only if it is

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clear that the danger existed when the complaint was filed. Andrews v. Cervantes, 493 F.3d

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See Fisher v. Director of OPS of CDCR, Case No. 2:14-cv-1323 EFB TLN P (E.D. Cal., Aug.
5, 2014) (ECF No. 17); Barger v. Kern County Superior Court et al., Case No. 1:14-cv-01071
DLB P (E.D. Cal., Aug. 13, 2014) (ECF No. 12); Barger v. Kern County Superior Court et al.,
Case No. 1:14-cv-01667 LJO SAB P (E.D. Cal., Oct. 29, 2014) (ECF No. 11); Barger v. Kern
County Superior Court et al., Case No. 1:14-cv-01628 LJO DLB P (E.D. Cal., Nov. 5, 2014)
(ECF No. 10); Barger v. Director of OPS of CDCR, Case No. 2:14-cv-2525 KJN P (E.D. Cal.,
Nov. 12, 2014) (ECF No. 11). The court also takes judicial notice of the National Pro Se ThreeStrikes Database, which designates plaintiff a three-strikes litigant based on the above-noted order
and findings in Fisher v. Director of OPS, Case No. 2:14-cv-1323 EFB TLN P (E.D. Cal., Aug. 5,
2014) (ECF No. 17). See http://nprose.circ9.dcn/Litigant.aspx.
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The undersigned takes judicial notice of the following cases which count as strikes against
plaintiff under § 1915(g): (1) Fisher v. FBI, Case No. 1:13-cv-0414 LJO SAB P (E.D. Cal. 2013)
(dismissed on July 26, 2013, for failure to state a claim (ECF No. 19)); (2) Barger v. FBI, Case
No. 1:13-cv-0535 DLB P (E.D. Cal. 2013) (dismissed on November 21, 2013, for failure to state
a claim (ECF No. 10)); (3) Barger v. Casey et al., Case No. 2:13-cv-8889 UA MAN P (C.D. Cal.
2013) (dismissed December 20, 2103, as frivolous, malicious or fails to state a claim, and sought
relief from an immune defendant (ECF No. 6)); and (4) Fisher v. Bivens, Six Unknown Agents,
Case No. 2:14-cv-01439 UA MAN P (C.D. Cal. 2014) (dismissed on March 6, 2014, for failure to
state a claim (ECF No. 2)).
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1047, 1053 (9th Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352

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F.3d 328, 330 (7th Cir. 2003), and must be ongoing, Andrews, 493 F.3d at1056. Allegations of

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imminent danger that are overly speculative or fanciful may be rejected. Id. at 1057 n.11. Absent

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a showing that plaintiff was under imminent danger of serious physical injury at the time he filed

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his complaint, his only option for proceeding with this action is to pay the full filing fee.

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Plaintiff is currently incarcerated at the California Health Care Facility in Stockton. In the

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complaint now pending before the court, plaintiff alleges that Warden Roukley allowed his staff

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to destroy plaintiff’s administrative grievances, and that the appeals supervisors failed to honor

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plaintiff’s requests to complete his in forma pauperis applications.4 Although plaintiff references

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an “attempted murder” under Warden Roukley’s watch, his allegations in that regard are vague

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and incoherent and do not appear to relate to plaintiff. Plaintiff also seeks the following relief:
For the hassle of No “IFPs,” for cheating on the 602 process, and all
around being unhonest I ask the sum of 214,000,000 or two
hundred 14 million dollars and 0 cents.

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(ECF No. 1 at 5) (sic). The complaint does not allege that plaintiff faces imminent danger of

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serious physical injury. Therefore, plaintiff may not proceed in forma pauperis in this action.

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Rather, in order to proceed with this action, plaintiff must submit the appropriate fee of $400.00

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($350.00 filing fee plus $50.00 administrative fee).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s September 26, 2014, motion to proceed in forma pauperis (ECF No. 2) is

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denied.

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2. Plaintiff shall, within twenty-one days from the date of this order, submit the

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appropriate fee of $400.00 ($350.00 filing fee plus $50.00 administrative fee).

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Finally, the court takes judicial notice of the fact that plaintiff filed over 30 cases in this court in
the calendar year 2014 alone.
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3. Plaintiff’s failure to timely comply with this order will result in the dismissal of this

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action.

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Dated: December 2, 2014

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DAD:4
fish2417.1915g

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