Howell v. Pleshchuk et al

Filing 25

ORDER signed by Magistrate Judge Deborah Barnes on 5/21/2019 DENYING plaintiff's 24 motion. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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Plaintiff,

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No. 2:18-cv-1788 DB P

v.

ORDER

R. PLESHCHUK, et al.,

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Defendants.

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Plaintiff is a state prisoner who was proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action in June 2018 by filing a

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complaint. (ECF No. 1.) On screening, this court granted plaintiff’s request to proceed in forma

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pauperis, found plaintiff failed to state any cognizable claims for relief, and gave him an

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opportunity to file an amended complaint. (ECF No. 9.) By a separate order, the court directed

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the California Department of Corrections and Rehabilitation to submit regular payments from

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plaintiff’s prison trust account until the $350 statutory filing fee was paid in full. (ECF No. 10.)
On November 19, 2018, plaintiff filed a first amended complaint. (ECF No. 14.) The

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court found plaintiff stated cognizable claims against all defendants. (ECF No. 15.) The court

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then ordered plaintiff to submit the documents necessary to serve defendants with the first

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amended complaint.

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Plaintiff submitted service documents on February 14, 2019. (ECF No. 16.) On February
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On February 28, 2019, Magistrate Judge Boone held a settlement conference in thirteen of

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plaintiff’s pending cases in this district. (See ECF No. 19.) Twelve of the thirteen cases,

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including the present case, were settled. (Id.) On March 7, 2019, plaintiff filed a notice of

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voluntary dismissal in this action. (ECF No. 22.) On March 11, this matter was dismissed and

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the case was closed. (ECF No. 23.)

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On March 28, 2019, plaintiff filed a motion to vacate the court’s order directing the

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CDCR to collect payments from plaintiff’s prison trust fund for the filing fee in this action. (ECF

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No. 24.) Plaintiff argues that there were “no pleadings in this matter,” “defendants ha[d] not been

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served,” and the “court has not yet screened the complaint.” Plaintiff is mistaken. He filed two

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pleadings in this case, both of which were screened by the court. In addition, while defendants

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had not formally appeared in the matter, plaintiff had submitted service documents and the U.S.

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Marshal had been directed to serve the first amended complaint.

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Plaintiff is advised that when he files a federal civil rights action, he remains liable for full

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payment of the filing fee regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(1),

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(2); Antonetti v. Foster, No. 3:14-cv-495-JAD-VPC, 2015 WL 6437399, at *3 (D. Nev. Oct. 22,

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2015) (“Plaintiff will . . . be required to make monthly payments toward the full $350 filing fee

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when he has funds available, even though this case is being dismissed.”); Turner v. San Diego

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County, No. 14cv1965 LAB (WVG), 2014 WL 5800595, at *1 (S.D. Cal. Nov. 7, 2014) (same);

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Mercier v. FBI, No. CV07-281-S-EJL, 2008 WL 360843, at *2 (D. Id. Feb. 8, 2008) (same). This

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case was pending here for over eight months before it was settled. During that time, the court

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screened two of plaintiff’s complaints and issued an order for the Marshal to serve defendants.

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The court finds no basis to make an exception to the rule that plaintiff is liable for the full filing

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fee.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No. 24) is denied
Dated: May 21, 2019

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DLB:9
DLB1/prisoner-civil rights/howe1788.fee

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