Driver v. Balanon
- James Donato
- 3:24-cv-03358
- U.S. District Court · Northern District of California
- 3
In Driver v. Balanon, Judge Donato ordered Driver to explain why he should receive fee-waiver status or pay the $405 filing fee.
Billy Driver, the self-represented state-prisoner plaintiff, must either respond to the order within 28 days or pay the $405 filing fee; the case may be dismissed if he does neither.
What happened
Billy Driver, representing himself and identified as a state prisoner, filed a civil-rights lawsuit under a federal law that allows claims against state actors, along with an application to proceed without paying the filing fee. In Driver v. Balanon, the court said Driver appeared barred from that fee waiver because of at least three prior qualifying dismissals, unless he alleged imminent danger of serious physical injury.
The court identified five prior cases as qualifying strikes under the prisoner-litigation statute. It gave Driver 28 days to explain why the fee waiver should not be denied, including by addressing those cases or showing imminent danger connected to his complaint. He may instead pay the full $405 filing fee.
Judge James Donato did not yet deny the fee-waiver application or dismiss the case. The order warns that failing to explain or pay the fee will result in dismissal under Federal Rule of Civil Procedure 41(b), and that failing to follow court orders or keep the court informed of address changes may also result in dismissal for failure to prosecute.
The detailed version
- Driver v. Balanon · No. 3:24-cv-03358
- 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 and applied to proceed without paying the filing fee. The court explained that the Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the fee after three or more prior federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim. The statute has an exception when the prisoner was under imminent danger of serious physical injury when the complaint was filed.
The court stated that the Ninth Circuit requires a connection between the alleged imminent danger and the unlawful conduct asserted in the complaint. The danger must be fairly traceable to that conduct, and a favorable court decision must be able to provide a remedy for the injury.
Prior strikes
The court identified five prior cases as strikes under 28 U.S.C. § 1915(g):
- Driver v. Martel, Case No. 08-cv-1910 GEB EFB (E.D. Cal.), dismissed for failure to state a claim; the Ninth Circuit affirmed.
- Driver v. Kelso, Case No. 11-cv-2397 EFB (E.D. Cal.), dismissed for failure to state a claim; the Ninth Circuit affirmed.
- Driver v. EPP, Case No. 12-cv-589 EFB (E.D. Cal.), dismissed for failure to state a claim.
- Driver v. Judge Susan Illston, Case No. 13-2508 JST (N.D. Cal.), dismissed for failure to state a claim.
- Driver v. Zamora, Case No. 14-cv-2170 BRO AGR (C.D. Cal.), dismissed for failure to state a claim; the Ninth Circuit affirmed.
Order
The court ordered Driver to show cause within 28 days why the 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 listed strike cases or demonstrate that he was under imminent danger of serious physical injury. In the alternative, he may pay the full $405 filing fee by the deadline.
The order states that failure to show cause or pay the fee will result in dismissal under Federal Rule of Civil Procedure 41(b). It also states that failure to prosecute the case, comply with court orders, or notify the court of an address change may result in dismissal for failure to prosecute. The order itself does not deny the fee-waiver application or dismiss the case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.