Reed v. Leatherman et al

Filing 41

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/10/2021 DENYING Plaintiff's 10/5/2020 "Motion for Court Order" and DENYING Plaintiff's 12/7/2020 Motion for Sanctions. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER J. REED,

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No. 2:18-cv-0038 KJM CKD P
Plaintiff,

v.

ORDER

D. LEATHERMAN, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se. On April 24, 2018, the court granted

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plaintiff’s request to proceed in forma pauperis. Pursuant to 28 U.S.C. §§ 1914(a) and

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1915(b)(1), plaintiff still must pay the $350 filing fee for this action, but is permitted to pay it in

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installments. To that end, the Director of the California Department of Corrections and

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Rehabilitation was ordered to collect an initial amount from plaintiff’s inmate trust account

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statement, consistent with statutory terms, and forward that amount to the court. ECF No. 7.

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After the initial amount was collected and sent to the court, the Director was instructed to collect

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the remainder of the filing fee as follows:

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[The Director] shall collect from plaintiff’s prison trust account
monthly payments in an amount equal to twenty percent (20%) of the
preceding month’s income credited to the prisoner’s trust account
and forward payments to the Clerk of the Court each time the amount
in the account exceeds $10.00 in accordance with 28 U.S.C. §
1915(b)(2), until the $350.00 filing fee for this action has been paid
in full. . .
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On October 5, 2020, plaintiff filed a motion objecting to the manner in which money has

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been deducted from his trust account. On July 14, 2020, then again on October 18, 2020,

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plaintiff’s trust account was credited with $100. ECF No. 36 at 6. The parties agree that on both

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occasions, calculations were made as to which portion of those deposits would be deducted from

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plaintiff’s account and ultimately sent to the court pursuant to the court’s collection order, and

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then a hold was placed on plaintiff’s account for those amounts. As to the July deposit, it was

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determined that $10.21 would be deducted and sent to the court. Id. As for the October deposit,

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it was determined that $10.05 would be deducted and sent to the court. Id. The trust account

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statement provided by plaintiff indicates the amounts were not actually deducted from plaintiff’s

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account until the first day of the following month (i.e. August 1st and October 1st respectively).

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Id. Plaintiff alleges the practice of placing a hold on plaintiff’s account until the first day of the

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next month violates the terms of the court’s April 24, 2018 collection order. The court disagrees.

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Essentially, prison officials collected amounts due for the filing fee on or near the days

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$100 was deposited into plaintiff’s account. Under the terms of the court’s collection order, there

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is no set day of the month upon which collection should be made. However, the calculation upon

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which the amount to be collected is determined and actual collection can occur no more than once

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per month. Again, it appears the calculation as to how much would be collected and at least

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constructive collection occurred shortly after money was deposited into plaintiff’s account on

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July 14, 2020 and then again on October 18, 2020. Since, the calculations and collections were

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more than a month apart, there is no violation of the court’s April 24, 2018 order.

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Plaintiff has filed a motion asking that the court sanction Warden J. Gastelo for not filing

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an adequate response to the court’s November 3, 2020 order in which the court asked the Warden

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“whether a hold was placed on plaintiff’s inmate trust account on July 21, 2020 so funds would

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be available to send to this court on August 1, 2020 in partial satisfaction of the filing fee due in

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this action.” The court finds that the Warden’s response (ECF No. 35), when considered with

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counsel for defendants’ clarification of the response (ECF No. 37) amounts to an affirmative

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response to the court’s inquiry. Since the court’s question has been adequately answered,

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sanctions are not warranted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 5, 2020 “motion for court order” is denied; and

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2. Plaintiff’s December 7, 2020 motion for sanctions is denied.

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Dated: February 10, 2021

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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reed0038.$

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