United States District Court, N.D. California
ORDER TO SHOW CAUSE
WILLIAM H. ORRICK United States District Judge
Gary Dale Barger, aka Sonny Barger, aka Gary Francis Fisher,
a state prisoner and frequent litigant in federal court, has
filed this federal civil rights action under 42 U.S.C. §
1983 along with a motion to proceed in forma
pauperis (“IFP”) under 28 U.S.C. §
1915. Barger is ordered to show cause on or before May 22,
2017 why 28 U.S.C. § 1915(g) does not bar pauper status
in this action.
prisoner may not bring a civil action or appeal a civil
judgment under 28 U.S.C. § 1915 “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).
the law of this Circuit, plaintiff must be afforded an
opportunity to persuade the Court that § 1915(g) does
not bar pauper status for him. See Andrews v. King,
398 F.3d 1113, 1120 (9th Cir. 2005). Andrews
requires that the prisoner be given notice of the potential
applicability of § 1915(g), by either the district court
or the defendants, but also requires the prisoner to bear the
ultimate burden of persuasion that § 1915(g) does not
bar pauper status for him. Id. Andrews implicitly
allows the Court to raise sua sponte the §
1915(g) problem, but requires the Court to notify the
prisoner of the earlier dismissals it considers to support a
§ 1915(g) dismissal and allow the prisoner an
opportunity to be heard on the matter before dismissing the
action. Id. A dismissal under § 1915(g) means
that a prisoner cannot proceed with his action as a pauper
under § 1915(g), but he still may pursue his claims if
he pays the full filing fee at the outset of the action.
Barger has had at least three prior prisoner actions or
appeals dismissed by a federal court on the grounds that they
are frivolous, malicious, or fail to state a claim upon which
relief may be granted:
(1) Fisher v. FBI, No. 1:13-cv-0414
LJO SAB P (E.D. Cal. 2013) (dismissed for failure to state a
(2) Barger v. FBI, No. 1:13-cv-0535
DLB P (E.D. Cal. 2013) (dismissed for failure to state a
(3) Barger v. Casey et al., No.
2:13-cv-8889 UA MAN P (C.D. Cal. 2013) (dismissed as
frivolous, malicious or fails to state a claim);
(4) Fisher v. Bivens, Six Unknown
Agents, No. 2:14-cv-01439 UA MAN P (C.D. Cal. 2014)
(dismissed for failure to state a claim);
(5) Barger v. Hardy, et al., No.
2:15-cv-01373-VBF-MAN (C.D. Cal. 2015) (dismissed for failure
to state a claim); and
(6) Barger v. Tucker, et al., No.
2:15-cv-02464-VBF-MAN (C.D. Cal. 2015) (dismissed for failure
to state a claim).
Court also takes judicial notice of the National Pro Se
Three-Strikes Database, which designates Barger a
three-strikes litigant. See
strikes are presumed valid. Barger has had two recent
opportunities to challenge the Court's determination that
these prior actions are strikes. Plaintiff therefore may
proceed IFP only if he is seeking relief from a danger of
serious physical injury which is "imminent" at the
time of filing. See Abdul-Akbar v. McKelvie, 239
F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999);
Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th
Court now orders Barger to show cause why IFP status should
not be denied and this action should not be dismissed
pursuant to 28 U.S.C. § 1915(g). Barger's response
to this order to show cause is due no later than May 22,
2017. No extensions of time will be granted. The
response must clearly be labeled "RESPONSE TO ORDER TO
SHOW CAUSE." In the alternative to showing cause why
this action should ...