Barger v. CDCR et al

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/02/16 ordering that plaintiff shall pay the $400.00 filing fee no later than 14 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SONNY BARGER II, aka Gary Francis
Fisher,
Plaintiff,

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No. 2:16-cv-0182 CKD P

ORDER
v.
CDCR, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the

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required filing fee of $350.00 plus the $50.00 administrative fee. See 28 U.S.C. §§ 1914(a),

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1915(a).

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28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

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and prosecution of any suit without prepayment of fees by a person who submits an affidavit

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indicating that the person is unable to pay such fees. However,

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[i]n 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 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
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physical injury.
28 U.S.C. § 1915(g).
Court records indicate that plaintiff has been deemed a “Three Strikes” inmate under 28

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U.S.C. § 1915(g). See Barger v. Hirsch, et al., No. 2:15-cv-0224 GEB DAD P, ECF No. 10

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(“[P]laintiff has been denied in forma pauperis status due to his three-strikes designation in at

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least five prior cases filed in this court.”) The court takes judicial notice of the cases identified

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therein as § 1915(g) strikes against plaintiff. Id., n.3.

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The imminent danger applies only if it is clear that the danger existed when the complaint

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was filed. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Allegations of imminent

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

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reviewed the complaint, the undersigned finds that plaintiff has not credibly alleged “imminent

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danger of serious physical injury” under § 1915(g).

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In light of the above, plaintiff will be granted fourteen days to pay the filing fee in this
action; otherwise, it will be dismissed.
IT IS HEREBY ORDERED that plaintiff shall pay the $400 filing fee no later than

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fourteen days from the date of this order. Failure to comply with this order will result in

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dismissal of this action.

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Dated: February 2, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / barg0182.threestrikes

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