Driver v. Avila
- James Donato
- 3:23-cv-03119
- U.S. District Court · Northern District of California
- 3
In Driver v. Avila, Judge Donato ordered Billy Driver to explain why he should proceed without paying the filing fee.
Billy Driver, a state prisoner representing himself, must either show that the three-strikes rule does not bar his request to proceed without paying the filing fee or pay the $402 filing fee by the deadline.
What happened
Billy Driver, a state prisoner representing himself, filed a civil-rights lawsuit against Avila and other defendants under a federal law that allows claims against state officials. He also asked to proceed without paying the filing fee.
The court said Driver appeared to have five prior cases that count as dismissals under the prisoner-filing rule known as the “three strikes” rule. That rule generally prevents a prisoner with three qualifying dismissals from proceeding without paying unless he faces an imminent danger of serious physical injury connected to the lawsuit.
The court ordered Driver to explain within 28 days why his request to proceed without paying should not be denied, or alternatively to pay the full $402 filing fee. Judge James Donato also warned that failing to follow court orders or keep the court informed of address changes could lead to dismissal for failure to prosecute.
The detailed version
- Driver v. Avila · No. 3:23-cv-03119
- James Donato
- Aug. 17, 2023
Background
Billy Driver, a state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983. He also filed an application to proceed without paying the filing fee, commonly called an IFP application.
The court said Driver appeared to be barred by the Prison Litigation Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g). That provision generally prevents a prisoner from proceeding without paying the filing fee after three or more earlier federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was under imminent danger of serious physical injury when the complaint was filed.
Prior dismissals and imminent danger
The court identified five prior cases as strikes under § 1915(g): Driver v. Martel, Driver v. Kelso, Driver v. EPP, Driver v. Judge Susan Illston, and Driver v. Zamora. The opinion states that those cases were dismissed for failure to state a claim, and that the dismissals in some of them were affirmed on appeal.
The court explained that the imminent-danger exception requires a connection between the alleged danger and the unlawful conduct asserted in the complaint. It said the alleged danger must be fairly traceable to that conduct and capable of being addressed by a favorable court decision.
Order
The court did not yet deny Driver’s IFP application. Instead, it ordered him to show cause within 28 days why the case should not be treated as barred by the three-strikes rule and why the application should not be denied. Driver could address the listed strike cases or show that he faced imminent danger of serious physical injury. As an alternative, he could pay the full $402 filing fee by the deadline.
The court also stated that Driver was responsible for prosecuting the case, notifying the clerk of any address change in a separate filing titled “Notice of Change of Address,” and complying with court orders on time. It warned that failure to do so could result in dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b). Judge James Donato entered the order on August 17, 2023.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.