1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, Case No. 3:25-cv-2584-BTM-VET CDCR #C-47370, 12 ORDER DENYING LEAVE TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 FOR FAILURE TO PAY FILING WARDEN, R.J. Donovan; FEES REQUIRED BY 16 WALKER, Counselor; 28 U.S.C. § 1914(a) STATE HOSPITAL, 17 Defendants. [ECF No. 2] 18 19 20 Plaintiff Michael L. Overton, a prisoner at Richard J. Donovan Correctional Facility 21 (“RJD”) in San Diego, who claims to be a licensed attorney in California and New York, 22 a professor at Harvard University, and the King of Saudi Arabia, is proceeding without 23 counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 24 (“Compl.”) at 1, 6. 25 Plaintiff alleges to have been denied his constitutional right to receive canteen 26 packages since he arrived at RJD in 2024, claims he was sexually assaulted by staff at 27 Atascadero State Hospital (“ASH”) in 2015, and also contends his social security payments 28 and “gold diamond platinum and silver mines” were stolen by his “alleged wife (staff 1 member)” at ASH. Id. at 3–6. He asks the Court to transfer him “back somewhere up 2 north,” but not to the California Health Care Facility (“CHCF”), which has been “set ablaze 3 multiple times.” Id. at 7. 4 Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a 5 civil action at the time he filed his Complaint. Instead, he submitted certified copies of his 6 RJD prison trust account statements for the six-months preceding the filing of this action, 7 which the Court liberally construes as a request to proceed in forma pauperis (“IFP”) 8 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. But because Plaintiff has a decades-long 9 history of filing frivolous suits and does not plausibly allege to be in imminent danger, the 10 Court DENIES him leave to proceed IFP and DISMISSES his case. 11 I. IFP MOTION 12 A. Legal Standard 13 When someone files a lawsuit (other than a writ of habeas corpus) in a federal district 14 court, the filer must pay a statutory fee of $350. See 28 U.S.C. § 1914(a).1 Absent fee 15 payment, the action may proceed only if the filer seeks and the court grants him leave to 16 proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 17 1051 (9th Cir. 2007) (“Cervantes”). “All persons, not just prisoners, may seek IFP status.” 18 Moore v. Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners 19 like Plaintiff, however, “face an additional hurdle.” Id. 20 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 21 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 22 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 23 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 24 25 26 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply 27 to . . . persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, Dist. Ct. Misc. Fee Schedule § 14 (eff. Dec. 1, 2023); see 28 1 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 2 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 3 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 4 § 1915(g)); see also Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). 5 When courts “review a dismissal to determine whether it counts as a strike, the style 6 of the dismissal or the procedural posture is immaterial. See Harris v. Mangum, 863 F.3d 7 1133, 1142 (9th Cir. 2017) (“[I]t does not matter whether [plaintiff] might have stated a 8 claim. What matters is that he did not do so.”). The “central question is whether the 9 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 10 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 11 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 1915(g) [] 12 hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial 13 effect.” Lomax, 140 S. Ct. at 1724–25. 14 “[T]o qualify as a strike for § 1915(g), a case as a whole, not just some of its 15 individual claims, must be dismissed for a qualifying reason.” Hoffman v. Pulido, 928 F.3d 16 1147, 1152 (9th Cir. 2019) (citing Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 17 F.3d 1048, 1057 (9th Cir. 2016)). “[I]f a case was not dismissed on one of the specific 18 enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 19 F.3d 670, 673 (9th Cir. 2019). Once a prisoner accumulates three strikes, however, 20 § 1915(g) precludes his ability to proceed IFP in any other civil actions or appeals in federal 21 court unless he “makes a plausible allegation that [he] faced ‘imminent danger of serious 22 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. 23 § 1915(g)). 24 B. Analysis 25 Defendants typically carry the initial burden to produce evidence demonstrating a 26 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 27 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 28 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 1 (9th Cir. 2005). This is one of those instances. A review of both district court and appellate 2 dockets publicly available on PACER show Plaintiff is no longer eligible to proceed IFP 3 because while incarcerated, he has had at least a dozen prior prisoner civil actions 4 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 5 which relief may be granted. Pursuant to Federal Rule of Evidence 201(b)(2), the Court 6 may take judicial notice of the docket records in Plaintiff’s prior cases. See Andrews, 398 7 F.3d at 1120; United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, Case No. 3:25-cv-2584-BTM-VET CDCR #C-47370, 12 ORDER DENYING LEAVE TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g) 14 AND DISMISSING CIVIL ACTION
15 FOR FAILURE TO PAY FILING WARDEN, R.J. Donovan; FEES REQUIRED BY 16 WALKER, Counselor; 28 U.S.C. § 1914(a) STATE HOSPITAL, 17 Defendants. [ECF No. 2] 18 19 20 Plaintiff Michael L. Overton, a prisoner at Richard J. Donovan Correctional Facility 21 (“RJD”) in San Diego, who claims to be a licensed attorney in California and New York, 22 a professor at Harvard University, and the King of Saudi Arabia, is proceeding without 23 counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 24 (“Compl.”) at 1, 6. 25 Plaintiff alleges to have been denied his constitutional right to receive canteen 26 packages since he arrived at RJD in 2024, claims he was sexually assaulted by staff at 27 Atascadero State Hospital (“ASH”) in 2015, and also contends his social security payments 28 and “gold diamond platinum and silver mines” were stolen by his “alleged wife (staff 1 member)” at ASH. Id. at 3–6. He asks the Court to transfer him “back somewhere up 2 north,” but not to the California Health Care Facility (“CHCF”), which has been “set ablaze 3 multiple times.” Id. at 7. 4 Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a 5 civil action at the time he filed his Complaint. Instead, he submitted certified copies of his 6 RJD prison trust account statements for the six-months preceding the filing of this action, 7 which the Court liberally construes as a request to proceed in forma pauperis (“IFP”) 8 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. But because Plaintiff has a decades-long 9 history of filing frivolous suits and does not plausibly allege to be in imminent danger, the 10 Court DENIES him leave to proceed IFP and DISMISSES his case. 11 I. IFP MOTION 12 A. Legal Standard 13 When someone files a lawsuit (other than a writ of habeas corpus) in a federal district 14 court, the filer must pay a statutory fee of $350. See 28 U.S.C. § 1914(a).1 Absent fee 15 payment, the action may proceed only if the filer seeks and the court grants him leave to 16 proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 17 1051 (9th Cir. 2007) (“Cervantes”). “All persons, not just prisoners, may seek IFP status.” 18 Moore v. Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners 19 like Plaintiff, however, “face an additional hurdle.” Id. 20 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 21 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 22 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 23 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 24 25 26 1 The court charges an additional $55 administrative fee, but “[t]his fee does not apply 27 to . . . persons granted in forma pauperis status under 28 U.S.C. § 1915.” 28 U.S.C. § 1914 (Jud. Conf. Schedule of Fees, Dist. Ct. Misc. Fee Schedule § 14 (eff. Dec. 1, 2023); see 28 1 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 2 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 3 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 4 § 1915(g)); see also Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). 5 When courts “review a dismissal to determine whether it counts as a strike, the style 6 of the dismissal or the procedural posture is immaterial. See Harris v. Mangum, 863 F.3d 7 1133, 1142 (9th Cir. 2017) (“[I]t does not matter whether [plaintiff] might have stated a 8 claim. What matters is that he did not do so.”). The “central question is whether the 9 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 10 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 11 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 1915(g) [] 12 hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial 13 effect.” Lomax, 140 S. Ct. at 1724–25. 14 “[T]o qualify as a strike for § 1915(g), a case as a whole, not just some of its 15 individual claims, must be dismissed for a qualifying reason.” Hoffman v. Pulido, 928 F.3d 16 1147, 1152 (9th Cir. 2019) (citing Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 17 F.3d 1048, 1057 (9th Cir. 2016)). “[I]f a case was not dismissed on one of the specific 18 enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 19 F.3d 670, 673 (9th Cir. 2019). Once a prisoner accumulates three strikes, however, 20 § 1915(g) precludes his ability to proceed IFP in any other civil actions or appeals in federal 21 court unless he “makes a plausible allegation that [he] faced ‘imminent danger of serious 22 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. 23 § 1915(g)). 24 B. Analysis 25 Defendants typically carry the initial burden to produce evidence demonstrating a 26 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 27 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 28 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 1 (9th Cir. 2005). This is one of those instances. A review of both district court and appellate 2 dockets publicly available on PACER show Plaintiff is no longer eligible to proceed IFP 3 because while incarcerated, he has had at least a dozen prior prisoner civil actions 4 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 5 which relief may be granted. Pursuant to Federal Rule of Evidence 201(b)(2), the Court 6 may take judicial notice of the docket records in Plaintiff’s prior cases. See Andrews, 398 7 F.3d at 1120; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a 8 court may take judicial notice of its own records in other cases, as well as other courts’ 9 records). 10 The following records are sufficient to show Plaintiff has twelve qualifying strikes: 11 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] to 12 dismiss civil action as legally frivolous and for failure to state a claim 13 pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 8), id. (E.D. Cal. Dec. 15, 14 2004) (Order Adopting F&Rs) (ECF No. 12); 15 2. Overton v. Assets of Decedent Debra Parchue by Way of Survivorship, et 16 al., Case No. 3:05-cv-1704-L-JMA (S.D. Cal. Dec. 20, 2005) (Order 17 Granting IFP and Dismissing Complaint for failing to state a claim 18 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A) (ECF No. 6);
19 3. Overton v. Doe, Case No. 5:08-cv-04272 JF (PR), 2009 WL 668755, at *2 20 (N.D. Cal. Mar. 13, 2009) (Order Dismissing civil action pursuant to 28 21 U.S.C. § 1915A for failure to state a claim upon which relief may be 22 granted) (ECF No. 10); 23 24 4. Overton v. Warden, CMF Vacaville, Case No. 2:11-CV-1646 LKK JFM, 2012 WL 1607833, at *2 (E.D. Cal. May 8, 2012) (Order and F&Rs to 25 Dismiss civil action for failure to state a claim pursuant to 28 U.S.C. 26 § 1915(e)) (ECF No. 15); id., (E.D. Cal. June 21, 2012) (Order Adopting 27 F&Rs) (ECF 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)) (ECF No. 6 at 1–4); 4 5 6. Overton v. Doe, et al., Case No. 2:14-cv-1110-UA-VBK (C.D. Cal. Feb. 6 27, 2014) (Order Denying IFP and Dismissing Complaint without leave to amend as frivolous and for failing to state a claim pursuant to 28 U.S.C. 7 § 1915(e)(2)) (ECF No. 6 at 1–3); 8 9 7. Overton v. Atascadero State Hosp., Case No. 2:16-cv-8958-R-JPR (C.D. 10 Cal. Dec. 7, 2016) (Order Denying IFP and Dismissing civil action without leave to amend as frivolous and for failing to state a claim) (ECF No. 8); 11
12 8. Overton v. Warden, et al., Appeal No. 16-56122 (9th Cir. Nov. 13, 2017) 13 (Order Denying Motion to proceed IFP and Dismissing appeal as frivolous 14 pursuant to 28 U.S.C. § 1915(e)(2)) (DktEntry9); 15 16 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. 17 § 1915(e)(2) for failure to state a claim) (ECF No. 9); 18 19 10. Overton v. CMF, Case No. 2:18-CV-0217 KJN P, 2018 WL 1015232, at 20 *2 (E.D. Cal. Feb. 22, 2018) (Order & F&Rs to Dismiss civil action as legally frivolous pursuant to 28 U.S.C. § 1915A) (ECF No. 13); id., (E.D. 21 Cal. Aug. 23, 2018) (Order Adopting F&Rs) (ECF No. 18); 22
23 11. Overton v. CA Health Care Facility, Case No. 2:18-CV-2551-DMC, 2019 24 WL 2026497, at *4 (E.D. Cal. May 8, 2019) (Order Dismissing First Amended Complaint with leave to amend for failing to state a claim 25 pursuant to 28 U.S.C. § 1915A) (ECF No. 12); id., (E.D. Cal. June 25, 26 2019) (F&Rs to Dismiss for failure to amend and/or prosecute) (ECF No. 27 28 1 15); id., (E.D. Cal. Aug. 8, 2019) (Order Adopting F&Rs and dismissing civil action) (ECF No. 16);2 and 2
3 12. Overton v. Ash-Exec-Dir., Case No. 2:18-cv-2915 KJM DMC (E.D. Cal. 4 May 21, 2019) (F&Rs to Dismiss First Amended Complaint with prejudice 5 as legally and factually frivolous) (ECF No. 10); id., (E.D. Cal. Aug. 20, 6 2019) (Order Adopting F&Rs and Dismissing action with prejudice) (ECF No. 12). 7 8 Because Plaintiff accumulated these prior strike dismissals while incarcerated, he 9 may not proceed IFP in this case unless he meets § 1915(g)’s “imminent danger” 10 exception.3 To do so, his pleadings must contain a “plausible allegation that [he] faced 11 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 12 1055 (quoting U.S.C. § 1915(g)). Imminent danger requires plausible allegations of harm 13 “ready to take place,” or “hanging threateningly over one’s head,” id. at 1056, and must 14 also “stem[] from the violations of law alleged in [the] complaint.” Ray, 31 F.4th at 701. 15 The exception “functions as a limited safety valve,” id., but it “cannot be triggered solely 16 by complaints of past injury or generalized fears of possible future harm.” Hernandez v. 17 Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021). 18 Plaintiff’s Complaint contains no plausible allegations of imminent or ongoing 19 physical danger. Instead, Plaintiff’s claims to be the King of Saudi Arabia and to own 20 21 22 2 See Harris, 863 F.3d at 1142 (finding that a failure to amend does “not negate the 23 determination already made by the Court that the complaint [plaintiff] had filed . . . failed to state a claim.”). “A prisoner may not avoid incurring strikes simply by declining to take 24 advantage of [an] opportunit[y] to amend.” Id. at 1143. 25 3 In fact, Plaintiff’s vexatiousness has resulted in a § 1915(g) restriction in the Eastern 26 District of California as well. See Overton v. Warden, No. 2:25-CV-0026 AC P, 2025 WL 27 81951, at *2 (E.D. Cal. Jan. 13, 2025) (Order and F&Rs to Deny IFP as barred by 28 U.S.C. § 1915(g)) (ECF No. 3), report and recommendation adopted, 2025 WL 958183 (E.D. Cal. 28 1 precious metal mines, are plainly grounded in part on delusion. See Compl. at 1, 6; Neitzke 2 v. Williams, 490 U.S. 319, 325 (1989) (noting that frivolousness “embraces not only the 3 inarguable legal conclusion, but also the fanciful factual allegation.”); Cervantes, 493 F.3d 4 at 1057 n.11 (“[A]ssertions of imminent danger … may be rejected [if] overly speculative 5 or fanciful.”). And while Plaintiff also contends he was the “victim of a sexual [and] 6 felonious assault” at ASH in 2015, see Compl. at 5, section 1915(g)’s “imminent danger” 7 exception cannot be triggered by reference to past harm. See Cervantes, 493 F.3d at 1053; 8 see also Allen v. Villanueva, No. 3:20-cv-02334-WQH-WVG, 2021 WL 614995, at *2 9 (S.D. Cal. Feb. 16, 2021) (“[C]onclusory references to a past incident of force, without 10 more, are insufficient to plausibly suggest Plaintiff faced an ‘imminent danger of serious 11 physical injury’ at the time he filed his Complaint.”); Cohea v. Davey, No. 1:19-CV-01281- 12 LJO-SAB (PC), 2019 WL 5446490, at *1 (E.D. Cal. Oct. 24, 2019) (finding prisoner’s 13 allegations of past assaults insufficient to show “imminent danger” under 1915(g)), 14 reconsideration denied, No. 1:19-CV-01281-NONE-SAB (PC), 2020 WL 5763929 (E.D. 15 Cal. Sept. 28, 2020). 16 For these reasons, the Court finds Plaintiff is not entitled to the privilege to proceed 17 IFP in this case. See Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). Because 18 he did not pay the full $405 statutory and administrative filing fee required by 28 U.S.C. 19 § 1914(a), his litigation history precludes IFP status, and he does not plausibly allege he 20 faced any imminent danger at the time he filed his Complaint, Plaintiff’s suit must be 21 dismissed. “A negative consequence that may impact a prisoner who files [] frivolous 22 complaint[s] is a restriction on [his] ability to file future cases without prepaying filing 23 fees.” Harris, 863 F.3d at 1139. 24 II. CONCLUSION 25 Accordingly, the Court: 26 (1) DENIES Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) (ECF 27 No. 2); 28 /// l (2) DISMISSES this civil action without prejudice based on Plaintiff's failure to 2 pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a); 3 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 4 U.S.C. § 1915(a)(3), and 5 (4) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to close 6 the case. 7 IT IS SO ORDERED. 8 || Dated: December 11, 2025 ill ‘ Honor Barry Ted Mh pare 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8