Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, Case No.: 3:26-cv-02010-AJB-MMP 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION WITHOUT PREJUDICE v. FOR FAILURE TO PAY FILING 14 FEE REQUIRED BY 28 U.S.C.

15 § 1914(a) R.J. DONOVAN CORRECTIONAL 16 FACILITY, WARDEN, 17 Defendants. 18 19 Plaintiff Michael L. Overton (“Overton” or “Plaintiff”), a prisoner currently 20 confined at R.J. Donovan Correctional Facility, has filed a pro se Complaint.1 (Doc. No. 21 1.) Plaintiff, however, has not filed a Motion to Proceed In Forma Pauperis (“IFP”) in this 22 matter nor has he paid the initial civil filing fee requirement by 28 U.S.C. § 1914(a). For 23 the reasons discussed below, the civil action is DISMISSED. 24 I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 25 Any person filing a civil case such as this one must pay a filing fee of $405. See 28 26 27 1 The case was originally filed in the United State District Court for the Eastern District of California and 28 1 U.S.C. § 1914(a). The case may go forward without the plaintiff prepaying the entire filing 2 fee, though, if the court grants him permission to proceed IFP. See Andrews v. Cervantes, 3 493 F.3d 1047, 1052 (9th Cir. 2007) (“Cervantes”); cf. Hymas v. U.S. Dep’t of the Interior, 4 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application is denied altogether, 5 Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re paid.”). 6 To pursue a case without paying the filing fee, a plaintiff must file an affidavit which 7 includes a statement of all assets, or things of value, the plaintiff possesses and must 8 demonstrate the plaintiff’s inability to pay the filing fee. See 28 U.S.C. § 1915(a)(2); see 9 also Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Plaintiffs who are 10 incarcerated at the time they file their civil case must also submit a copy of their “certified 11 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month 12 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 13 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Under the current version of the 14 IFP statute, “if a prisoner brings a civil action or files an appeal in forma pauperis, the 15 prisoner shall be required to pay the full amount of a filing fee” in increments. Hymas, 73 16 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)). 17 Here, Plaintiff has not paid the $405 filing and administrative fee required to begin 18 this civil action. Nor has he submitted a Motion to Proceed IFP. See Escobedo, 787 F.3d at 19 1234. Therefore, his case cannot go forward. See 28 U.S.C. § 1914(a). 20 II. LEAVE TO PROCEED IFP 21 Even if Overton had filed a Motion to Proceed IFP, the Cout finds he is not entitled 22 to proceed IFP in this action for the reasons set forth below. 23 A. Legal Standard 24 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 25 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Overton, however, “face 26 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 27 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 28 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 1 preclude the privilege to proceed IFP in cases where the prisoner: 2 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 3 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 4 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 5 6 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 7 provision.” Andrews, 398 F.3d at 1116 n.1. 8 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 9 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 10 id. (internal quotations omitted), “even if the district court styles such dismissal as a denial 11 of the prisoner’s application to file the action without prepayment of the full filing fee.” 12 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 13 determine whether it counts as a strike, the style of the dismissal or the procedural posture 14 is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells 15 of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 16 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 17 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 18 of any subsequent IFP civil action or appeal in federal court unless he “makes a plausible 19 allegation that [he] faced ‘imminent danger of serious physical injury’ at the time of filing.” 20 Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)). “[T]he PLRA [also] 21 requires a nexus between [any] alleged imminent danger and the violations of law alleged 22 in the prisoner’s complaint.” Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022). Thus, to 23 qualify for an exception, “a three-strikes prisoner must allege imminent danger of serious 24 physical injury that is both fairly traceable to unlawful conduct alleged in his complaint 25 and redressable by the court.” Id. at 701. 26 B. Discussion 27 While Overton has not moved to proceed IFP in this case, the Court finds it would 28 be futile for him to do so. Based on review of the dockets of many court proceedings, the 1 Court finds Overton has had at least a dozen prisoner civil actions or appeals dismissed on 2 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief 3 may be granted. 4 Courts “‘may take notice of proceedings in other courts, both within and without the 5 federal judicial system, if those proceedings have a direct relation to matters at issue.’” 6 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 7 285 F.3d 801, 803 n.2 (9th Cir. 2002)). As such, this Court takes judicial notice of federal 8 docket proceedings available on PACER and finds that Plaintiff, currently identified as 9 California Department of Corrections and Rehabilitation Inmate #C-47370, has filed well 10 over a dozen civil actions and appeals in federal courts. 11 Some specific examples of “strikes” filed and dismissed while Overton was in 12 custody are: 13 (1) Overton v. Stockton Valley S&L, Case No. 2:04-cv-1874-MCE-DAD (E.D. Cal. Nov. 16, 2004) (Order and Findings & Recommendations [F&Rs] 14 to dismiss civil action as legally frivolous and for failure to state a claim 15 pursuant to 28 U.S.C. § 1915(e)(2)) (Doc. No. 8), id. (E.D. Cal. Dec. 15, 2004) 16 (Order Adopting F&Rs) (Doc. No. 12); 17 (2) Overton v. Assets of Decedent Debra Parchue by Way of Survivorship, 18 et al., Case No. 3:05-cv-1704-L-JMA (S.D. Cal. Dec. 20, 2005) (Order Granting IFP and Dismissing Complaint for failing to state a claim pursuant 19 to 28 U.S.C. §§ 1915(e)(2) and 1915A) (Doc. No. 6); 20 (3) Overton v. Doe, Case No. 5:08-cv-04272 JF (PR), 2009 WL 668755, at 21 *2 (N.D. Cal. Mar. 13, 2009) (Order Dismissing civil action pursuant to 28 22 U.S.C. § 1915A for failure to state a claim upon which relief may be granted) 23 (Doc. No. 10); 24 (4) Overton v. Warden, CMF Vacaville, Case No. 2:11-cv-1646 LKK JFM, 25 2012 WL 1607833, at *2 (E.D. Cal. May 8, 2012) (Order and F&Rs to Dismiss civil action for failure to state a claim pursuant to 28 U.S.C. 26 § 1915(e)) (Doc. No. 15); id., (E.D. Cal. June 21, 2012) (Order Adopting 27 F&Rs) (Doc. No. 16); 28 1 (5) Overton v. Warden, CMC, et al., Case No. 2:13-cv-1588-UA-VBK (C.D. Cal. March 21, 2013) (Order Denying IFP and Dismissing Complaint 2 without leave to amend as frivolous, malicious or for failing to state a claim 3 pursuant to 28 U.S.C. § 1915(e)(2)) (Doc. No. 6 at 1–4); 4 (6) Overton v. Doe, et al., Case No. 2:14-cv-1110-UA-VBK (C.D. Cal. 5 Feb. 27, 2014) (Order Denying IFP and Dismissing Complaint without leave 6 to amend as frivolous and for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)) (Doc. No. 6 at 1–3); 7 8 (7) Overton v. Atascadero State Hosp., Case No. 2:16-cv-8958-R-JPR (C.D. Cal. Dec. 7, 2016) (Order Denying IFP and Dismissing civil action 9 without leave to amend as frivolous and for failing to state a claim) (Doc. No. 10 8); 11 (8) Overton v. Warden, et al., Appeal No. 16-56122 (9th Cir. Nov. 13, 12 2017) (Order Denying Motion to proceed IFP and Dismissing appeal as 13 frivolous pursuant to 28 U.S.C. § 1915(e)(2)) (Dkt. Entry 9); 14 (9) Overton v. Oakland Raiders Association, Case No. 3:17-cv-6917-CRB (N.D. Cal. Jan. 22, 2018) (Order of Dismissal of case pursuant to 28 U.S.C. 15 § 1915(e)(2) for failure to state a claim) (Doc. No. 9); 16 (10) Overton v. CMF, Case No. 2:18-cv-0217 KJN P, 2018 WL 1015232, at 17 *2 (E.D. Cal. Feb. 22, 2018) (Order & F&Rs to Dismiss civil action as legally 18 frivolous pursuant to 28 U.S.C. § 1915A) (Doc. No. 13); id., (E.D. Cal. Aug. 19 23, 2018) (Order Adopting F&Rs) (Doc. No. 18); 20 (11) Overton v. CA Health Care Facility, Case No. 2:18-cv-2551-DMC, 2019 WL 2026497, at *4 (E.D. Cal. May 8, 2019) (Order Dismissing First 21 Amended Complaint with leave to amend for failing to state a claim pursuant 22 to 28 U.S.C. § 1915A) (Doc. No. 12); id., (E.D. Cal. June 25, 2019) (F&Rs to 23 Dismiss for failure to amend and/or prosecute) (Doc. No. 15); id., (E.D. Cal. 24 Aug. 8, 2019) (Order Adopting F&Rs and dismissing civil action) (Doc. No. 16); and 25 (12) Overton v. Ash-Exec-Dir., Case No. 2:18-cv-2915 KJM DMC (E.D. Cal. 26 May 21, 2019) (F&Rs to Dismiss First Amended Complaint with prejudice as 27 legally and factually frivolous) (Doc. No. 10); id., (E.D. Cal. Aug. 20, 2019) 28 (Order Adopting F&Rs and Dismissing action with prejudice) (Doc. No. 12). 1 Thus, this Court finds that Plaintiff has, while incarcerated, had far more than three 2 || prior civil actions dismissed on the grounds that they were frivolous, malicious, or failed 3 || to state a claim upon which relief may be granted. 4 As noted above, once a prisoner has accumulated three or more strikes, § 1915(g) 5 || prohibits his pursuit of any subsequent IFP civil action or appeal in federal court unless he 6 || faces “imminent danger of serious physical injury.” See Cervantes, 493 F.3d at 1055. Here, 7 allegations in Plaintiff's Complaint are difficult to discern. The Complaint 1s comprised 8 ||of pages of an administrative grievance upon which Overton has made short notations, 9 || including vague references to ““endemnity [sic]” and “prior Pell grants apportioned.” (See 10 ||Doc. No. 1 at 1.) But Overton alleges no facts in his Complaint suggesting he faced 11 |}imminent danger of serious physical injury at the time of filing. Therefore, he may not 12 || proceed IFP in this case. See 28 U.S.C. § 1915(g). 13 Ht. CONCLUSION AND ORDER 14 For the reasons discussed above, the Court DISMISSES this civil action without 15 || prejudice based on Plaintiff's failure to pay the full statutory and administrative $405 civil 16 || filing fee required by 28 U.S.C. § 1914(a) and CERTIFIES that an IFP appeal from this 17 ||Order would be frivolous and not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 18 |}and DIRECTS the Clerk of the Court to close the case. 19 IT IS SO ORDERED. 20 Dated: April 13, 2026 22 United States District Judge 23 24 25 26 27 28 6 ee