Unreported / Non-Citable
Background
Michael L. Overton, a state prisoner at Richard J. Donovan Correctional Facility in San Diego, filed a pro se civil rights complaint under 42 U.S.C. sections 1983 and 1997 and the Federal Tort Claims Act against a Doe warden. The court described his claims as muddled. He alleged that a telephone implanted in his head informed him the prison had run a sub-par program since June 2026, that staff accused him of theft despite his having stopped four RICO operations, and that he wanted an accounting of money from an ownership interest in Major League Baseball obtained through testator-ship and a raffle.
Overton did not pay the filing fee under 28 U.S.C. section 1914(a). The court noted a $350 statutory fee plus a $55 administrative fee, for a total of $405. He instead submitted certified trust account statements, which the court liberally construed as a request to proceed in forma pauperis (IFP) under section 1915(a). Under the Prison Litigation Reform Act, section 1915(g) generally bars a prisoner from proceeding without prepayment if he has had three or more prior suits or appeals dismissed as frivolous, malicious, or for failure to state a claim, unless he plausibly alleges imminent danger of serious physical injury when he filed.
The Court’s Holding
Taking judicial notice of docket records available on PACER, the court found that Overton had twelve qualifying strikes accumulated while incarcerated. They came from dismissals in the Eastern, Central, Northern, and Southern Districts of California between 2004 and 2019, plus a 2017 Ninth Circuit order dismissing an appeal as frivolous. The court observed that defendants ordinarily bear the initial burden of showing a prisoner is barred, but that court dockets can suffice. One strike followed dismissal with leave to amend and a later dismissal for failure to amend; citing Harris, the court treated the failure to amend as not negating the earlier ruling that the complaint failed to state a claim.
The court then found no plausible allegation of imminent danger. A lack of programming, being labeled a thief, and a demand for money from a baseball interest did not describe physical harm ready to take place, and the exception cannot rest on past injury or generalized fears of future harm. The court denied IFP under section 1915(g), dismissed the action without prejudice for failure to pay the $405 fee, certified that an IFP appeal would not be taken in good faith, and directed the clerk to enter final judgment and close the file. Because the dismissal rests on the unpaid fee, the order decides no claim on the merits.
Key Takeaways
- A prisoner with three or more qualifying dismissals cannot proceed in forma pauperis under section 1915(g) unless he plausibly alleges imminent danger of serious physical injury at the time of filing.
- Although defendants ordinarily bear the initial burden, the court may rely on judicially noticed PACER dockets to establish strikes where those records suffice.
- A strike turns on the ground of dismissal rather than its label, and a plaintiff cannot avoid a strike by declining to amend after a failure-to-state-a-claim ruling.
- The imminent danger exception requires plausible allegations of serious physical harm that is ready to take place and stems from the violations alleged, and it cannot rest on past injury, generalized fears, or money disputes.
- The dismissal is without prejudice for nonpayment of the fee, yet the court also certified that an IFP appeal would not be taken in good faith and directed entry of final judgment.
Why It Matters
The order shows how a district court can resolve a three-strikes question at the screening stage by reviewing public dockets rather than waiting for a defendant to raise the issue. It lists each qualifying dismissal by court, date, and ground, which makes the strike count easy to verify and review.
The decision is an unpublished district court order and carries no precedential weight. It applies settled Ninth Circuit authority, including Andrews v. Cervantes, Harris v. Mangum, and Ray v. Lara, rather than making new law. Its practical effect is limited to this plaintiff, who must prepay fees to sue in federal court absent a plausible showing of imminent danger, and the order notes earlier section 1915(g) denials in other cases. It does not bar him from filing suit if he pays the full fee.