McCrea v. Lesniak et al

Filing 8

ORDER DENYING 7 Plaintiff's Motion to Allow Rule 67 to be Implemented signed by Magistrate Judge Stanley A. Boone on 10/31/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRENCE MCCREA,

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Plaintiff,

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v.

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LESNIAK, et al.,

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Defendants.

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Case No. 1:17-cv-01329-SAB (PC)
ORDER REGARDING PLAINTIFF’S
REQUEST TO ALLOW RULE 67 TO BE
IMPLEMENTED
[ECF No. 7]

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Plaintiff Terrence McCrea is a state prisoner proceeding pro se and in forma pauperis in

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this civil action pursuant to 42 U.S.C. § 1983. On October 20, 2017, Plaintiff consented to the

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jurisdiction of a United States Magistrate Judge. 28 U.S.C. § 636(c); Local Rule 302.

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Currently before the Court is Plaintiff’s motion titled, “motion requesting the court to

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allow Rule 67 to be implemented, lien on the judgment to pay filing fee,” filed on October 30,

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2017. (ECF No. 7.) Plaintiff’s motion is not entirely clear, but he appears to seek to be allowed to

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proceed without prepaying the filing fee for this action. Plaintiff also states that if the Court finds

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he must prepay the filing fee for this action, then a lien for the amount of the fees should be

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placed on any judgment in this action, pursuant to Federal Rule of Civil Procedure 67, so that his

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action is not dismissed for non-payment.
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Federal Rule of Civil Procedure 67(a) authorizes a court to accept deposits of money and

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other personal assets in cases where such assets are genuinely at issue in the case. See e.g.

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Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 113 (1st Cir. 2007) (“The core

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purpose of Rule 67 is to relieve a party who holds a contested fund from responsibility for

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disbursement of that fund amount those claiming some entitlement thereto.”). In other words, the

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moving party under Rule 67 makes a request to deposit a disputed amount or asset with a court

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until the court determines how such funds should be divided among the parties. Here, Plaintiff

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has not offered to tender any funds or assets that are in dispute between the parties. Rule 67 is

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inapplicable to his request regarding the payment of his filing fee, which is his responsibility

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alone.

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Second, Plaintiff has been granted leave to proceed in forma pauperis in this matter, and

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thus is not currently required to pre-pay the filing fee in this case. (ECF No. 5.) As discussed in

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this Court’s October 11, 2017 order, Plaintiff is required to pay the statutory filing fee of $350

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for this action by making monthly payments in the amount of twenty percent of the proceeding

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month’s income credited to his trust account each time the amount in the account exceeds $10,

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until the statutory filing fee is paid in full. Thus, Plaintiff’s request to be allowed to proceed in

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this action without prepaying the filing fee is unnecessary.
For these reasons, Plaintiff’s motion to implement Rule 67 to pay the filing fee in this

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case is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

October 31, 2017
UNITED STATES MAGISTRATE JUDGE

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