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Barger v. Kern County Superior Court

United States District Court, E.D. California

August 13, 2014

GARY DALE BARGER, AKA GARY FRANCIS FISHER, Plaintiff,
v.
KERN COUNTY SUPERIOR COURT, et al., Defendants.

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS UNDER 28 U.S.C. § 1915(g) ORDER VACATING ORDER OF JULY 9, 2014 (Document 7) ORDER DISMISSING ACTION WITHOUT PREJUDICE TO REFILING WITH PAYMENT OF FILING FEE ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AS MOOT (Document 11) ORDER FOR CLERK TO SERVE THIS ORDER ON CDCR AND FINANCIAL DEPARTMENT

DENNIS L. BECK, Magistrate Judge.

Plaintiff Gary Dale Barger ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on July 2, 2014. On July 9, 2014, the Court granted Plaintiff's application to proceed in forma pauperis.[1]

The complaint is currently awaiting screening.

A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that "[i]n 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 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." 28 U.S.C. § 1915(g).

B. DISCUSSION

A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis unless he was, at the time the Complaint was filed, under imminent danger of serious physical injury.[2]

The Court has reviewed Plaintiff's Complaint and finds that he does not meet the imminent danger exception. See Andrews v. Cervantes , 493 F.3d 1047, 1053 (9th Cir. 2007). Although not entirely clear, Plaintiff's complaint appears to arise from his claim that his release date is being manipulated. He attempts to bring a petition for writ of habeas corpus and a civil rights action. Plaintiff also cites the Klu Klux Klan Act.

Plaintiff therefore fails to allege specific facts in the Complaint indicating that he was under imminent danger at the time he filed the Complaint. Based on the foregoing, the Court finds that Plaintiff fails to allege the imminent danger of serious physical injury necessary to bypass § 1915(g)'s restriction on filing suit without prepayment of the filing fee.

Accordingly, Plaintiff may not proceed in forma pauperis in this action and Plaintiff's in forma pauperis status shall be REVOKED. This action is DISMISSED without prejudice to refiling upon payment of the $400.00 filing fee. Plaintiff's July 21, 2014, motion for preliminary injunction is DENIED AS MOOT.

C. CONCLUSION

Based on the foregoing, it is HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff's in forma pauperis status is REVOKED;
2. The Court's order entered on July 9, 2014, which granted Plaintiff leave to proceed in forma pauperis and directed the CDCR to make payments for the filing fee from Plaintiff's prison trust account, is VACATED;
3. This action is DISMISSED without prejudice to refiling upon payment in full of the $400.00 filing fee;
4. Plaintiff's July 21, 2014, motion for preliminary injunction (Document 11) is DENIED AS MOOT; and
5. The Clerk is directed to serve a copy of this order on:
(1) the Director of the CDCR, via the Court's electronic case filing system (CM/ECF), and
(2) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division.

This terminates this action in its entirety.

IT IS SO ORDERED.


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