Driver v. Sirken
- James Donato
- 3:24-cv-02897
- U.S. District Court · Northern District of California
- 3
In Driver v. Sirken, Judge Donato ordered Billy Driver to explain his filing-fee eligibility or pay $405, and granted one filing motion while denying another.
Billy Driver, a state prisoner representing himself, must either show why the three-strikes rule does not bar him from proceeding without paying the filing fee or pay the full $405 fee within 28 days. The order also governs how he may submit future filings.
What happened
In Driver v. Sirken, Billy Driver, a state prisoner representing himself, filed a civil-rights complaint and asked to proceed without paying the filing fee upfront. The court said he appeared barred by a rule limiting prisoners with three or more qualifying prior dismissals.
The court identified five prior dismissals that counted as strikes. Driver may explain why those cases should not count or show that he faced an immediate danger of serious physical injury when he filed this case. Alternatively, he may pay the full $405 filing fee within 28 days.
Judge James Donato ordered Driver to show cause or pay the fee, warning that failure to do so will result in dismissal under Rule 41(b). Judge Donato granted Driver’s request to have the mailed complaint considered, but denied permission to file electronically.
The detailed version
- Driver v. Sirken · No. 3:24-cv-02897
- James Donato
- June 17, 2024
Background
Billy Driver, a state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983. He also applied to proceed without paying the filing fee upfront.
Three-strikes issue
The Prison Litigation Reform Act generally bars a prisoner from proceeding without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner was under imminent danger of serious physical injury when the complaint was filed.
The court identified five prior cases involving Driver that it determined qualified as strikes because they were dismissed for failure to state a claim. The court explained that the alleged imminent danger must be connected to unlawful conduct asserted in the complaint and that a favorable court decision must be capable of addressing the injury.
Order
The court ordered Driver to show cause within 28 days why this case should not be treated as barred by the three-strikes rule and why his application to proceed without paying the filing fee should not be denied. Driver may address the prior strike cases, show that he was under imminent danger of serious physical injury, or pay the full $405 filing fee by the deadline. The court stated that failing to show cause or pay the fee will result in dismissal under Federal Rule of Civil Procedure 41(b).
The court granted Driver’s motion to be excused from submitting the original complaint through prison email and stated that it would consider the mailed complaint. It denied Driver’s request for permission to file electronically and declined to order the prison to provide him with a computer. The court stated that future filings may be submitted by mail.
Judge James Donato also stated that Driver is responsible for prosecuting the case, keeping the court informed of any address change through a separate notice, and complying with court orders. The order warned that failure to do so may result in dismissal for failure to prosecute under Rule 41(b).
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.