Akers v. Siereveld
- Edward Chen
- 3:17-cv-03340
- U.S. District Court · Northern District of California
- 3
In Akers v. Siereveld, Judge Chen ordered Akers to explain why fee-waiver status and his case should not be dismissed under the prisoner-filing rule.
Montgomery Carl Akers, the incarcerated plaintiff proceeding without a lawyer, was required to respond by November 27, 2020, or pay the full $400 filing fee to avoid the contemplated dismissal.
What happened
Akers v. Siereveld concerns Montgomery Carl Akers, who filed this civil case without a lawyer and asked to proceed without paying the filing fee upfront. He is incarcerated at the United States Penitentiary in Marion, Illinois.
The court identified seven earlier dismissals that might count as strikes under the prisoner-filing rule. Because Akers did not appear to face an immediate risk of serious physical injury, the court considered denying his fee-waiver request and dismissing the case, but it had not yet made that decision.
Judge Edward M. Chen ordered Akers to respond in writing by November 27, 2020, explaining why the request and case should not be dismissed. The order also allowed Akers to avoid dismissal by paying the full $400 filing fee by that deadline.
The detailed version
- Akers v. Siereveld · No. 3:17-cv-03340
- Edward Chen
- Oct. 19, 2020
Background
Montgomery Carl Akers filed a civil action without a lawyer and applied to proceed without paying the filing fee upfront under 28 U.S.C. § 1915. He is incarcerated at the United States Penitentiary in Marion, Illinois.
Prisoner-Filing Rule
Section 1915(g) generally prevents 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 failing to state a legally sufficient claim. An exception applies if the prisoner is under imminent danger of serious physical injury. A dismissal under this rule affects the prisoner's ability to proceed without paying the fee; the prisoner may still pursue the claims by paying the full filing fee at the outset.
The court explained that merely having filed many cases is not enough. It must carefully evaluate whether earlier cases were dismissed for one of the qualifying reasons. The prisoner must ultimately persuade the court that the rule does not bar fee-waiver status, but the prisoner must first receive notice of the earlier dismissals the court is considering and an opportunity to respond.
Earlier Dismissals Considered
The court identified seven earlier dismissals that it believed might qualify as strikes. The listed dismissals were based on failure to state a claim, frivolousness, or both. The opinion stated that the court would need to determine whether those dismissals qualify, using docket records or, if necessary, the underlying court files.
Order
The court stated that Akers did not appear to be under imminent danger of serious physical injury. It therefore ordered him to show cause in writing by November 27, 2020, why his request to proceed without paying the filing fee upfront should not be denied and why this action should not be dismissed under § 1915(g). The court said it would consider arguments in Akers's motion for an initial hearing and any additional arguments in his written response. Alternatively, Akers could avoid dismissal by paying the full $400 filing fee by the deadline.
This was an order to show cause and did not itself deny fee-waiver status or dismiss the action.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.