Stewart v. Jones et al

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 9/16/13 ORDERING that plaintiffs motion for refund 6 is DENIED; and plaintiffs motion for leave to file an amended complaint 7 is DENIED as unnecessary.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RALPH EDWARD STEWART,

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Plaintiff,

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No. 2:12-CV-2464-CMK-P

vs.

ORDER

SCOTT JONES, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a refund of over payment

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(Doc. 6), and a motion to file an amended complaint (Doc. 7).

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Pursuant to Federal Rule of Civil Procedure 15(a)(1), a party may amend his

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pleading once as a matter of right at any time before being served with a responsive pleading. A

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review of the docket reflects that no responsive pleading has been served. Therefore, plaintiff’s

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motion will be denied as unnecessary. This action shall now proceed on the amended complaint,

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which supercedes the prior complaint. The amended complaint will be addressed by separate

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order.

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As to plaintiff’s request for a refund, 28 U.S.C. § 1915(b)(1) requires the court to

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collect an initial partial filing fee in the amount of 20 percent of the greater of the average

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monthly deposits or the average monthly balance in the prisoner’s trust account. After the initial

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partial filing fee, then monthly payments are required each time the amount in the account

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exceeds $10.00. According to the trust account statement plaintiff submitted with his application

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to proceed in forma pauperis, plaintiff had a balance of $206.23, with deposits equaling

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approximately $700.00 between July and December 2011. For that five month period, the

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average monthly deposit would equal approximately $140.00 per month. Thus, 20 percent of

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$140 would equal $28.00. Plaintiff complains that the institution deducted $17.45 from his

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account. This amount is less than the court calculates would have been the appropriate initial

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partial filing fee. Thus, no overpayment was made, and no refund necessary.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for refund (Doc. 6) is denied; and

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2.

Plaintiff’s motion for leave to file an amended complaint (Doc. 7) is

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denied as unnecessary.

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DATED: September 16, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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