Bull v. Scribner, et al.

Filing 103

ORDER DENYING 101 Motion for Court to Stop Collection of Filing Fee signed by Magistrate Judge Erica P. Grosjean on 9/13/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMMANUEL BULL,

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Plaintiff,

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vs.

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ORDER DENYING MOTION FOR
COURT TO STOP COLLECTION OF
FILING FEE
(ECF No. 101.)

WARDEN A. K. SCRIBNER, et al.,

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1:05-cv-01255-LJO-GSA-PC

Defendants.

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I.

BACKGROUND

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This case was dismissed on March 21, 2013 based on Plaintiff’s failure to exhaust

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administrative remedies pursuant to 42 U.S.C. § 1997e(a), and judgment was entered. (ECF

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Nos. 91, 92.) Plaintiff, a state prisoner proceeding pro se and in forma pauperis, now brings a

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motion for the Court to stop collection of the filing fee for this action from Plaintiff’s prison

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trust account. (ECF No. 101.)

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II.

IN FORMA PAUPERIS STATUS – 28 U.S.C. § 1915

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Section 1915 of Title 28 of the United States Code governs proceedings in forma

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pauperis. “Plaintiffs normally must pay [the filing fee] to file a civil complaint in federal

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district court, 28 U.S.C. ' 1914(a), but 28 U.S.C. ' 1915(a)(1) allows the district court to waive
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the fee, for most individuals unable to afford it, by granting in forma pauperis status.”

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Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, notwithstanding being

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granted leave to proceed in forma pauperis, “if a prisoner brings a civil action . . , the prisoner

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shall be required to pay the full amount of a filing fee” through payments deducted from the

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prisoner’s prison trust account. 28 U.S.C. § 1915(b)(1). After payment of an initial filing fee,

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if any, “the prisoner shall be required to make monthly payments of 20 percent of the preceding

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month’s income credited to the prisoner’s account. The agency having custody of the prisoner

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shall forward payments from the prisoner’s account to the clerk of the court each time the

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amount in the account exceeds $10 until the filing fees are paid.” 28 U.S.C. § 1915(b)(2).

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III.

PLAINTIFF’S MOTION

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Plaintiff requests the Court to stop the California Department of Corrections and

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Rehabilitation (CDCR) from continuing to collect payment from his prison trust account

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statement for the filing fee for this action, because he is indigent and was granted leave to

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proceed in forma pauperis in this action.

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B.

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Plaintiff filed this case on October 3, 2005 and submitted an application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1, 2.) On October 28, 2005, the

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Court issued orders granting Plaintiff leave to proceed in forma pauperis and directing the

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CDCR to send payments to the Clerk of the Court from Plaintiff’s prison trust account

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statement until the filing fee of $250.00 was paid in full. (ECF Nos. 5, 6.)

Discussion

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In forma pauperis status allows a prisoner’s case to be filed and proceed without full

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payment of the filing fee, but does not excuse the prisoner from payment of the filing fee in

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payments, over time, from the prisoner’s trust account. Under the federal statute, the Court is

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required to collect payments for the filing fee when funds exist. 28 U.S.C. 1915(b)(1),(2).

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Plaintiff’s argument that he cannot afford to pay the filing fee is unpersuasive. Numerous

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prisoners in similar circumstances are paying the filing fees for their lawsuits in this manner.

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Plaintiff provides no evidence that the CDCR is not properly collecting payments for the filing

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fee pursuant to the Court’s order. Therefore, Plaintiff’s motion shall be denied.
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IV.

CONCLUSION
Based on the foregoing, Plaintiff’s motion for the Court to stop collection of the filing

fee for this action, filed on October 28, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

September 13, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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