Barger v. Director of OPS of CDCR

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/14/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis (ECF Nos. 17 , 19 & 21 ) is denied; All other outstanding motions (ECF Nos. 14 , 16 , 18 , & 20 ) are denied; and within fourteen days, plaintiff shall submit the $400 filing fee for this action. Plaintiffs failure to comply with this order will result in dismissal of this action.(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 DALE BARGER,

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Plaintiff,

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No. 2:15-cv-0221 CKD P

v.

ORDER

CDCR,
Defendant.

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

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proceeding pro se with a civil action. Plaintiff has consented to have all matters in this action

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before a United States Magistrate Judge, see 28 U.S.C. § 636(c), and has requested leave to

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proceed in forma pauperis.

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On March 5, 2015, the court ordered plaintiff to file a completed application to proceed in

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forma pauperis within 30 days. While plaintiff has filed “motions” to proceed in forma pauperis,

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he has not filed the completed application required by the court.

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In any case, review of court records reveals that on at least three prior occasions lawsuits

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filed by 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 dated December 20, 2013, in

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Barger v. Casey, 2:13-cv-08889-UA-MAN (C.D. Cal.) (frivolous, malicious or fails to state a

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claim upon which relief may be granted); November 21, 2013, in Barger v. FBI, 1:13-cv-0535
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DLB (E.D. Cal.) (failure to state a claim); and July 26, 2013, in Fisher v. FBI, 1:13-cv-0414 LJO

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SAB (E.D. Cal.) (adopting June 17, 2013 findings that deficiencies in plaintiff’s amended

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complaint cannot be cured by the allegation of other facts). Accordingly, plaintiff is precluded

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from proceeding in forma pauperis in this action unless plaintiff is “under imminent danger of

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serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff has not alleged any facts in his first

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amended complaint1 which suggest that he is under imminent danger of serious physical injury.

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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:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF Nos. 17, 19 & 21) is

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denied;

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2. All other outstanding motions (ECF Nos. 14, 16, 18, & 20) are denied; and

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3. Within fourteen days, plaintiff shall submit the $400 filing fee for this action.

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Plaintiff’s failure to comply with this order will result in dismissal of this action.

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Dated: April 14, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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barg0221.1915g

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Plaintiff amended his pleadings on February 20, 2015 (ECF No. 12) which he was entitled to do
under Rule 15(a) of the Federal Rules of Civil procedure. Therefore, the first amended complaint
is the operative complaint in this action.
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