Dury v. Ciufo

Filing 27

ORDER DENYING Plaintiff's 20 Motion to Collect Filing Fee or Forfeit Future Collections signed by District Judge Anthony W. Ishii on 10/12/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW JAMES DURY,

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Plaintiff,
v.
CIUFO,

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Case No. 1:13-cv-00595-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO COLLECT FILING FEE OR FORFEIT
FUTURE COLLECTIONS
(ECF No. 20)

Defendant.

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Plaintiff Matthew James Dury (“Plaintiff”) is a federal prisoner who proceeded pro se and

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in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of

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Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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On July 30, 2014, the assigned Magistrate Judge issued findings and recommendations

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that this action be dismissed based on Plaintiff’s failure to state any claims upon which relief may

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be granted. (ECF No. 17.) On September 5, 2014, the undersigned issued an order adopting the

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findings and recommendations in full and dismissing this action for failure to state a claim upon

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which relief may be granted. (ECF No. 18.) Judgment was entered accordingly the same date.

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(ECF No. 19.)

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On March 2, 2021, Plaintiff filed a “Notice to Court.” (ECF No. 20.) Though filed as a

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“notice,” the Magistrate Judge construed this filing as a motion requesting that the Court

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immediately collect the encumbered balance from Plaintiff’s trust account, as well as review t he
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recent ruling in Plaintiff’s criminal matter. The Magistrate Judge denied both requests for lack of

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jurisdiction. (ECF No. 21.)

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Plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals on April 14, 2020.

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(ECF No. 22.) On September 17, 2021, the Ninth Circuit vacated the Magistrate Judge’s March

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3, 2020 order, because the parties had not consented to proceed before a Magistrate Judge, and

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remanded for further proceedings. (ECF No. 25.) The Ninth Circuit issued its mandate on

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October 12, 2021. (ECF No. 26.)

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Pursuant to the Ninth Circuit’s remand order, the Court reviews Plaintiff’s “Notice to

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Court,” which the Court construes as a motion regarding filing fees, filed February 24, 2020.

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(ECF No. 20.)

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In the motion, Plaintiff states that he has filed 15 cases, including the instant closed case,

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with this Court for a total of $5,250 in court fees. Plaintiff states that he currently has $25.36 on

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his trust account, yet Trust Fund Officer Bell and Warden True refuse to pay this court ordered

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debt. Plaintiff states that the Court has 60 calendar days, or until April 20, 2020, to collect the

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$25.36 from his account or forfeit all future collections of the $5,250 court fees. Based on

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attachments to Plaintiff’s notice, it appears that the account balance of $25.36 is encumbered

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towards debts he has agreed to pay, though which debts are not specified, and this encumbered

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balance is preventing Plaintiff from being placed on indigent status. Another attachment to the

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filing appears to be Plaintiff’s request for some type of intervention into a recent ruling in a prior

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or ongoing criminal case. (Id.)
With respect to Plaintiff’s trust account balance, Plaintiff is reminded that the Court

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collects fees based on Plaintiff’s monthly income or deposits to his trust account. Therefore, it is

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unclear whether the referenced encumbrance is even related to the Court’s filing fees. To the

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extent Plaintiff is requesting that the Court order prison officials to release the encumbered funds

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to pay for Plaintiff’s filing fees, the Court has no jurisdiction to issue such an order. A remedy

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may lie with the prison’s administrative grievance process, which it appears Plaintiff has already

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begun to pursue.

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As to Plaintiff’s request regarding his ongoing criminal case, the Court also lacks

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jurisdiction to review orders issued in ongoing or prior criminal actions. Plaintiff should direct

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any disagreement with an order entered in that criminal case to the court which issued the order.

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Accordingly, Plaintiff’s motion, (ECF No. 20), is HEREBY DENIED. This action
remains closed.

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IT IS SO ORDERED.
Dated: October 12, 2021
SENIOR DISTRICT JUDGE

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