United States District Court, E.D. California
GARY DALE BARGER, also known as Gary Fisher and Sonny Barger Plaintiff,
UNITED STATES OF AMERICA,, Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING THAT
PLAINTIFF PAY THE $400 FILING FEE FOR THIS ACTION.
Gary Dale Barger is appearing pro se in this civil rights
action pursuant to 42 U.S.C. § 1983.
filed the instant complaint on June 27, 2017, in the United
States District Court for the United States District Court
for the Northern District of California. The case was
transferred to this Court on July 17, 2017.
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 “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
PROVISION OF 28 U.S.C. § 1915
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).
Plaintiff neither submitted an application to proceed in
forma pauperis or paid the filing fee, 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
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). Plaintiff's complaint challenges his underlying
criminal conviction. Plaintiff 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