Byrd v. Van Dyken et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HOUSTON BYRD, aka KEBRA
NAGAST,
Plaintiff,
vs.
VAN DYKEN, NORTH PARK
SENIORS MANAGER JANE DOE;
HOUSING COMMISSION
MANAGER JANE DOE,
Defendants.
Case No. 25-cv-2011-RSH-BJW
ORDER:
(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
AND
(3) DENYING MOTION TO
POSTPONE AS MOOT
[ECF Nos. 6, 7]
Plaintiff Houston Byrd, also known as Kebra Nagast, a pretrial detainee in San Diego
Central Jail, is proceeding without counsel in this civil rights action filed pursuant to 42
U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”). See ECF No. 1
(“Compl.”). While not altogether clear, it appears Plaintiff seeks to sue the property
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manager at North Park Seniors, a housing development located at Howard & Texas Streets
in San Diego, for, among other things, breaking his TV, “gaslighting” him, and stalking
him after an October 26, 2024, altercation on the property led to his arrest and eviction. Id.;
see also ECF No. 3 at 1–2.
Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a
civil action at the time he filed his Complaint; instead, he filed a Motion to Proceed in
forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 6. Plaintiff has also
submitted three Declarations in support of his Complaint, and a Motion to Postpone the
case until after he is released from custody. See ECF Nos. 3, 5, 7, 9, 10.
For the reasons explained below, the Court DENIES Plaintiff’s Motions and
DISMISSES the case without prejudice.
I. 	IFP MOTION
A. 	Legal Standard
When someone files a lawsuit (other than a writ of habeas corpus) in a federal district
court, the filer must pay a statutory fee of $350. See 28 U.S.C. § 1914(a).1 Absent fee
payment, the action may proceed only if the filer seeks, and the court grants him, leave to
proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047,
1051–52 (9th Cir. 2007) (“Cervantes”). “All persons, not just prisoners, may seek IFP
status.” Moore v. Maricopa County Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011).
Prisoners and criminal pretrial detainees like Plaintiff, however, “face an additional
hurdle.” Id.
“To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison
Litigation Reform Act of 1995 (PLRA) established what has become known as the three-
1 	The court charges an additional $55 administrative fee, but “[t]his fee does not apply
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
also S.D. Cal. CivLR 4.5.a.
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strikes rule.” Lomax v. Ortiz-Marquez, 590 U.S. 595, 597 (2020) (quoting Jones v. Bock,
549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing suit in
forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three or
more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or fail[ed]
to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. § 1915(g)); Ray
v. Lara, 31 F.4th 692, 697 (9th Cir. 2022).
When courts “review a dismissal to determine whether it counts as a strike, the style
of the dismissal or the procedural posture is immaterial.” Harris v. Mangum, 863 F.3d
1133, 1142 (9th Cir. 2017). The “central question is whether the dismissal ‘rang the PLRA
bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d
1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
In other words, “[a] strike-call under Section 1915(g) . . . hinges exclusively on the basis
for the dismissal, regardless of the decision’s prejudicial effect.” Lomax, 140 S. Ct. at
1724–25.
“[T]o qualify as a strike for § 1915(g), a case as a whole, not just some of its
individual claims, must be dismissed for a qualifying reason.” Hoffman v. Pulido, 928 F.3d
1147, 1152 (9th Cir. 2019). “[I]f a case was not dismissed on one of the specific enumerated
grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 F.3d 670, 673
(9th Cir. 2019). Once a prisoner accumulates three strikes, however, § 1915(g) precludes
his ability to proceed IFP in any other civil actions or appeals in federal court unless he
“makes a plausible allegation that [he] faced ‘imminent danger of serious physical injury’
at the time of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. § 1915(g)).
B. 	Analysis
Defendants typically carry the initial burden to produce evidence demonstrating a
prisoner is not entitled to proceed IFP, but “in some instances, the district court docket
records may be sufficient to show that a prior dismissal satisfies at least one on the criteria
under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120
(9th Cir. 2005). This is one of those instances. A review of both Southern and Central
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District of California district court dockets publicly available on PACER show Plaintiff,
who is also known as Kebra Nagast, is no longer eligible to proceed IFP because while
incarcerated, he has had more than three prior prisoner civil actions dismissed on the
grounds that they were frivolous, malicious, or failed to state a claim upon which relief
may be granted. See Compl. at 1; ECF No. 4 at 1. Pursuant to Federal Rule of Evidence
201(b)(2), this Court may take judicial notice of the docket records in Plaintiff’s prior
cases. See Andrews, 398 F.3d at 1120; United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980) (stating that a court may take judicial notice of its own records in other cases, as well
as other courts’ records).
The following records are sufficient to show Plaintiff has four qualifying strikes:
(1) 	Nagast v. Lee, et al., Case No. 3:01-cv-02362-L-NLS (S.D. Cal. April
2, 2002) (Order granting IFP and dismissing complaint for failing to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1))
(ECF No. 6);
(2) 	Nagast v. Director of Corrections, et al., Case No. 5:09-cv-01044-CJC-
PJW (C.D. Cal. Feb. 28, 2012) (Report & Recommendation [R&R] to
grant Defendants’ motion to dismiss Second Amended Complaint for
failure to state a claim) (ECF No. 94); id., (C.D. Cal. April 26, 2012)
(Order accepting R&R) (ECF No. 96); id., (C.D. Cal. July 10, 2012)
(R&R to dismiss civil action with prejudice for failure to amend and/or
prosecute); id. (C.D. Cal. Sept. 26, 2012) (Order accepting R&R and
dismissing civil action); 2
(3) 	Nagast v. House of Metamorphosis, Case No. 3:10-cv-1036-JAH-POR
(S.D. Cal., Nov. 29, 2010) (Order dismissing First Amended Complaint
for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) &
1915A(b)(1) (ECF No. 10); and
2 	See Harris, 863 F.3d at 1142 (finding that a failure to amend does “not negate the
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
advantage of [an] opportunit[y] to amend.” Id. at 1143.
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(4) 	Nagast v. Office of the Public Defender, et al., Case No. 3:21-cv-0164-
TWR-JLB (S.D. May 11, 2021) (Order dismissing First Amended
Complaint for failing to state a claim without leave to amend pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)) (ECF No. 12).
Because Plaintiff accumulated these prior strike dismissals while incarcerated, he
may not proceed IFP in this case unless he meets § 1915(g)’s “imminent danger”
exception.3 To do so, his pleadings must contain a “plausible allegation that [he] faced
‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at
1055 (quoting U.S.C. § 1915(g)). Imminent danger requires plausible allegations of harm
“ready to take place,” or “hanging threateningly over one’s head,” id. at 1056, and must
also “stem[] from the violations of law alleged in [the] complaint,” Ray, 31 F.4th at 701.
The exception “functions as a limited safety valve,” id., but it “cannot be triggered solely
by complaints of past injury or generalized fears of possible future harm,” Hernandez v.
Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021)
(citing Cervantes, 493 F.3d at 1053).
Neither Plaintiff’s Complaint nor his subsequently filed Declarations include any
plausible allegations of imminent or ongoing physical danger. Instead, Plaintiff claims that
a private property manager, together with two unidentified public housing commissioners,
destroyed his property in 2024 and engaged in a campaign of harassment in order to assault
and evict him because he is Black and Muslim. See Compl. at 3; see also ECF No. 3 at 1–
3; ECF No. 4 at 2–3. Section 1915(g)’s “imminent danger” exception cannot be triggered
merely by reference to past injuries. See Cervantes, 493 F.3d at 1053; see also Allen v.
Villanueva, No. 3:20-cv-02334-WQH-WVG, 2021 WL 614995, at *2 (S.D. Cal. Feb. 16,
2021) (“[C]onclusory references to a past incident of force, without more, are insufficient
to plausibly suggest Plaintiff faced an ‘imminent danger of serious physical injury’ at the
3 	A court in this district first noted Plaintiff’s § 1915(g) bar in 2016 in Byrd v. Director
of Corrections, et al., Case No. 3:15-cv-2339-GPC-KSC (S.D. Cal. Feb. 29, 2016) (ECF
No. 8 at 3–6).
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time he filed his Complaint.”); Cohea v. Davey, No. 1:19-CV-01281-LJO-SAB (PC), 2019
WL 5446490, at *1 (E.D. Cal. Oct. 24, 2019) (finding prisoner’s allegations of past assaults
insufficient to show “imminent danger” under 1915(g)), reconsideration denied, No. 1:19-
CV-01281-NONE-SAB (PC), 2020 WL 5763929 (E.D. Cal. Sept. 28, 2020).
Moreover, none of Plaintiff’s broad allegations of conspiracy, retaliation, or
purported ADA violations plausibly suggest he faced imminent or ongoing physical danger
at the time he filed suit from the San Diego County Jail. See Cervantes, 493 F.3d at 1055;
Tyler v. Matruz, No. 25-CV-01337-CAB-DEB, 2025 WL 2441043, at *3 (S.D. Cal. Aug.
25, 2025) (“[P]ast assaults, random acts of racial discrimination or harassment, and
sprawling allegations of conspiracy and retaliation do not meet § 1915(g)’s exception for
‘imminent danger.’”); 	Harris v. Phillips, No. 1:23-CV-01051-SAB (PC), 2023 WL
5103357, at *2 (E.D. Cal. July 17, 2023) (finding alleged violations of the Americans with
Disabilities Act insufficient to show “imminent” or “ongoing” danger), 	report and
recommendation adopted, 2024 WL 2852447 (E.D. Cal. June 5, 2024).
For these reasons, the Court finds Plaintiff is not entitled to proceed IFP in this case.
“A negative consequence that may impact a prisoner who files . . . frivolous complaint[s]
is a restriction on his ability to file future cases without prepaying filing fees.” Harris, 863
F.3d at 1139. Because Plaintiff did not pay the full $405 statutory and administrative filing
fee required by 28 U.S.C. § 1914(a), his litigation history precludes proceeding IFP, and
he was not in imminent danger of serious physical injury at the time he filed his Complaint
and therefore does not qualify for § 1915(g)’s exception to the three-strikes rule, his suit is
subject to dismissal. See Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir.
2023) (“[W]here [an] IFP application is denied altogether, Plaintiff’s case [cannot] proceed
. . . .”).
//
//
//
//
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II. 	CONCLUSION
Accordingly, the Court:
(1) 	DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 6) as barred by 28
U.S.C. § 1915(g);
(2) 	DISMISSES this civil action without prejudice based on Plaintiff’s failure to
pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a);
(3) 	DENIES Plaintiff’s Motion to Postpone (ECF No. 7) as moot;
(4) 	CERTIFIES that an IFP appeal would not be taken in good faith pursuant to
28 U.S.C. § 1915(a)(3), and
(5) 	DIRECTS the Clerk of Court to close the case.
IT IS SO ORDERED.
Dated: January 5, 2026
Hon. Robert S. Huie
United States District Judge
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