1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, No. 2:25-cv-0026 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with this civil action. 18 I. Three Strikes Analysis 19 Plaintiff has not yet submitted an application to proceed in forma pauperis in this case or 20 paid the required filing fee of $350.00 plus the $52.00 administrative fee. However, as explained 21 below, plaintiff will not be given the opportunity to submit an application to proceed in forma 22 pauperis because he has accrued at least three strikes under

(g) and he has not 23 shown that he is under imminent danger of serious physical injury. Instead, the court will 24 recommend that plaintiff be required to pay the $402.00 in required fees or suffer dismissal of the 25 complaint. 26 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States 27 to authorize the commencement and prosecution of any suit without prepayment of fees by a 28 person who submits an affidavit indicating that the person is unable to pay such fees. However, 1 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 2 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 3 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 4 unless the prisoner is under imminent danger of serious physical injury. 5 6

(g). The plain language of the statute makes clear that a prisoner is precluded 7 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 8 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 9

(9th Cir. 1999). 10 “[Section] 1915(g) should be used to deny a prisoner’s [in forma pauperis] status only 11 when, after careful evaluation of the order dismissing an action, and other relevant information, 12 the district court determines that the action was dismissed because it was frivolous, malicious or 13 failed to state a claim.” Andrews v. King,

(9th Cir. 2005). “[W]hen a 14 district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is 15 frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint 16 is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of 17 the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. 18 Price,

(9th Cir. 2008) (second alteration in original). Dismissal also counts 19 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it 20 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 21 amended complaint” regardless of whether the case was dismissed with or without prejudice. 22 Harris v. Mangum,

(9th Cir. 2017). 23 Inspection of other cases filed by plaintiff has led to the identification of at least six cases 24 that qualify as strikes. The court takes judicial notice of the following lawsuits filed by plaintiff:1

25 1 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 1. Overton v. Stockton Valley S&L, No. 2:04-cv-1874 MCE DAD (E.D. Cal.) (case 2 dismissed as legally frivolous and for failure to state a claim on December 15, 2004 3 (ECF No. 12)); 4 2. Overton v. Warden, No. 16-56122 (9th Cir.) (appeal dismissed as frivolous on 5 November 13, 2017 (ECF No. 9)); 6 3. Overton v. Oakland Raiders Association, No. 3:17-cv-6917 CRB (N.D. Cal.) (case 7 dismissed for failure to state a claim on January 22, 2018 (ECF No. 9)); 8 4. Overton v. CMF, No. 2:18-cv-0217 TLN KJN (E.D. Cal.) (case dismissed as legally 9 frivolous on August 23, 2018 (ECF No. 18)); 10 5. Overton v. Ash-Exec-Dir., No. 2:18-cv-2915 KJM DMC (E.D. Cal.) (case dismissed 11 for failure to state a claim on August 20, 2019 (ECF No. 12)); 12 6. Overton v. CA Health Care Facility, No. 2:18-cv-2551 JAM DMC (E.D. Cal.) 13 (complaint dismissed with leave to amend for failure to state a claim (ECF No. 12), 14 case dismissed for failure to file an amended complaint on August 8, 2019 (ECF No. 15 16)). 16 All of the preceding cases were dismissed well in advance of the December 28, 2024 17 constructive filing of the instant action, and none of the strikes have been overturned. Therefore, 18 this court finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under 19 imminent danger of serious physical injury.”

(g). To satisfy the exception, 20 plaintiff must have alleged facts that demonstrate that he was “under imminent danger of serious 21 physical injury” at the time of filing the complaint. Andrews v. Cervantes,

, 1053 22 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for 23 purposes of the ‘imminent danger’ exception to § 1915(g).”). “[T]he imminent danger exception 24 to the PLRA three-strikes provision requires a nexus between the alleged imminent danger and 25 the violations of law alleged in the complaint.” Ray v. Lara,

(9th Cir. 2022). 26 The complaint alleges that plaintiff represents television personalities Wendy Williams, 27 Gayle Johnson, and Tamron Hall and that they have been denied their right to purchase unlimited 28 vendor packages for plaintiff, and that his property was set on fire on September 11, 2013. ECF 1 |} No. 1 at 1-3. These individuals then attempted to visit plaintiff at the prison, where they were 2 || shot to death. Id. at 3. There are no allegations that would demonstrate an imminent risk of 3 || serious physical injury at the time of filing, and the undersigned will therefore recommend that 4 | plaintiff be required to pay the filing fee in full or have the complaint dismissed. 5 Il. Plain Language Summary of this Order for a Pro Se Litigant 6 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 7 || status unless you show the court that you were in imminent danger of serious physical injury at 8 | the time you filed the complaint. You have not shown that you were in imminent danger of 9 || serious physical injury and so it is being recommended that you be required to pay the whole 10 | filing fee at one time. 11 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 12 || assign a United States District Judge to this action. 13 IT IS FURTHER RECOMMENDED that plaintiff be ordered to pay the entire $405.00 in 14 || required fees within thirty days or face dismissal of the case. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 17 | after being served with these findings and recommendations, plaintiff may file written objections 18 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 19 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 20 | time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

21 | (9th Cir. 1991). 22 || DATED: January 10, 2025 . 23 Hhthten— Care 04 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 25 26 27 28