Driver v. C-5 Third-Watch Mail Guard Responsible for Mail Delivery
- James Donato
- 3:24-cv-08762
- U.S. District Court · Northern District of California
- 3
In Driver v. C-5 Third-Watch Mail Guard, Judge Donato ordered Billy Driver to explain why he should proceed without paying the filing fee.
Billy Driver's ability to proceed without paying the filing fee and the continued existence of his civil-rights action. The court required him to respond within 28 days or pay the $405 filing fee, and warned that failing to do so will result in dismissal.
What happened
Billy Driver, a state prisoner representing himself, filed a civil-rights lawsuit under a federal law allowing claims against state officials and asked to proceed without paying the filing fee. In Driver v. C-5 Third-Watch Mail Guard Responsible for Mail Delivery, the court said Driver appears barred by a rule for prisoners who have had three or more qualifying cases dismissed.
The court identified five earlier cases that it said count as qualifying dismissals. Prisoners with three or more such dismissals generally cannot proceed without paying the filing fee unless they show that they faced an immediate danger of serious physical injury when they filed the complaint, and that danger is connected to the claims in the case.
Judge James Donato ordered Driver to explain within 28 days why the court should not deny his request to proceed without paying the fee. Alternatively, Driver may pay the full $405 filing fee by the deadline. The court warned that failing to respond will result in dismissal of the case.
The detailed version
- Driver v. C-5 Third-Watch Mail Guard Responsible for Mail Delivery · No. 3:24-cv-08762
- James Donato
- Jan. 2, 2025
Background
Billy Driver, identified as a state prisoner, filed a civil-rights complaint under 42 U.S.C. § 1983 and applied to proceed without paying the filing fee. He was proceeding without a lawyer. The court stated that he appears to be barred from proceeding without paying under the Prison Litigation Reform Act's “three strikes” rule, 28 U.S.C. § 1915(g).
Three-strikes rule
Section 1915(g) generally prevents a prisoner from bringing a federal civil action without paying the filing fee if the prisoner previously brought three or more actions or appeals while incarcerated or detained that were dismissed as frivolous, malicious, or for failure to state a claim. The exception applies if the prisoner was under imminent danger of serious physical injury when the complaint was filed. The court also explained that the alleged danger must be connected to unlawful conduct asserted in the complaint and must be capable of being addressed by a favorable court decision.
The court identified five prior cases involving Driver that it said qualify as strikes. The opinion states that each was dismissed for failure to state a claim, and that the dismissals in three of those cases were affirmed by the Ninth Circuit.
Order
The court issued an order to show cause rather than deciding the application immediately. It required Driver, within 28 days, to explain 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. The court said Driver could address the listed strike cases or show that he was under imminent danger of serious physical injury. As an alternative, he could pay the full $405 filing fee by the deadline.
The order states that failure to respond will result in dismissal of the action. It also requires Driver to keep the court informed of any address change and comply with court orders; failure to do so may result in dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b). The opinion does not decide the underlying civil-rights claims or finally rule on the fee application.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.