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Barger v. CDCR

United States District Court, E.D. California

April 23, 2015

GARY DALE BARGER, Plaintiff,
v.
CDCR, et al., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. Motion for Leave to Proceed In Forma Pauperis

Review of court records[1] reveals that plaintiff is designated a "three strikes litigant" under 28 U.S.C. § 1915(g), which provides:

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 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.

Such a designation indicates that plaintiff has brought three or more prior actions that were dismissed as frivolous, malicious, or for failure to state a claim, and precludes plaintiff from proceeding in forma pauperis in the present action unless he demonstrates that he was under imminent danger of serious physical injury when he filed the complaint.

The undersigned notes that plaintiff has been denied in forma pauperis status due to his three-strikes designation in at least six prior cases, [2] which together cite several cases in which plaintiff's complaints were dismissed as frivolous, malicious, or for failure to state a claim. This court has reviewed the basis of the findings in those cases and concurs that plaintiff has suffered 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 unless he demonstrates that he was "under imminent danger of serious physical injury" when he filed his complaint. 28 U.S.C. § 1915(g). The imminent danger exception applies only if it is clear that the danger existed when the complaint was filed. Andrews v. Cervantes , 493 F.3d 1047, 1053 (9th Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini , 352 F.3d 328, 330 (7th Cir. 2003), and must be ongoing, Andrews , 493 F.3d at 1056. Allegations of imminent danger that are overly speculative or fanciful may be rejected. Id. at 1057 n. 11. Absent a showing that plaintiff was under imminent danger of serious physical injury at the time he filed his complaint, his only option for proceeding with this action is to pay the full filing fee.

Plaintiff is currently incarcerated at the California Health Care Facility in Stockton. In the complaint now pending before the court, in the course of describing a number of events that have taken place since May 14, 2003, plaintiff states, "[T]hey still attempt to poison me with Zyprexa." (First Amended Complaint ("FAC"), ECF No. 19 at 4.) However, plaintiff does not elaborate on this statement in any way in the remainder of his complaint. As discussed further below, it is impossible to determine whether the complaint, taken as a whole, states a claim for relief; the court can neither discern who the defendants are nor what they are alleged to have done, and whether plaintiff is truly "under imminent danger of serious physical injury." Plaintiff does not specify what symptoms he is experiencing as a result of taking Zyprexa, and whether he believes he is being intentionally poisoned and by whom, or whether he has an allergy to Zyprexa, or whether he is suffering from the side effects of the medication, or whether he merely disagrees with his physicians as to his need for the medication. Even construing the allegation regarding Zyprexa liberally, see Andrews , 493 F.3d at 1055, the court cannot say, with any measure of certainty, that plaintiff has alleged that he was in imminent danger of serious physical injury at the time the FAC was filed. Accordingly, the court will defer ruling on plaintiff's request to proceed in forma pauperis until such time as plaintiff files an amended complaint.

II. Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen , 395 U.S. 411, 421 (1969).

The court finds the allegations in plaintiff's FAC so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the FAC does not contain a short and plain statement as required by Fed.R.Civ.P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency , 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. ...


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