Wilkins v. Gonzalez, et al.

Filing 78

ORDER signed by Chief District Judge Kimberly J. Mueller on 12/7/2023 DENYING 77 without prejudice, Rule 60 Motion. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Keenan Wilkins,

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No. 2:16-cv-00347-KJM-KJN
Plaintiff,

ORDER

v.
Paul Gonzalez, et al.,

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Defendants.

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Plaintiff, a state prisoner, filed this civil rights action without counsel in February 2016.

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This court revoked plaintiff’s in forma pauperis (IFP) status on March 14, 2018, and ordered him

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to pay a $400.00 filing fee within thirty days. Order, ECF No. 61, at 3. Plaintiff did not pay the

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filing fee, nor did he show good cause, and so this action was dismissed. Dismissal Order, ECF

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No. 68. Plaintiff subsequently petitioned the Ninth Circuit for a writ of mandamus, which was

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“denied without prejudice to petitioner seeking whatever relief may be available in the district

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court in light of Meyers v. Birdsong, 83 F.4th 1157, 1160–61 (9th Cir. 2023).” Ninth Circuit

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Order, ECF No. 76. Plaintiff now files this motion for relief under Rule 60 and the Ninth

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Circuit’s Order, asking for a “refund of all fees collected in this action as he was not allowed to

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proceed IFP and for an order from the court to prison officials to cease collection.” Mot. at 4,

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ECF No. 77.

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In Meyers v. Birdsong, the court held Ҥ 1915(b) neither permits nor requires the

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collection of fees from a struck-out prisoner who attempts to file an appeal IFP,” and “directed

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the Clerk of the District Court to return any fees that it collected on [the court’s] behalf for [the]

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appeal.” Meyers, 83 F.4th at 1161. Here, plaintiff’s request does not include sufficient

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information or evidence to establish a successful claim for a refund, such as evidence of the funds

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withdrawn or subject to future withdrawal from his account or evidence the court has ordered the

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withdrawal of the funds. See Mot. at 1–6. Accordingly, the motion is denied without prejudice.

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This order resolves ECF No. 77.

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IT IS SO ORDERED.

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DATED: December 7, 2023.

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