Milazo v. Tilton et al

Filing 14

ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT by Judge Phyllis J. Hamilton denying 12 Motion (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/13/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK F. MILAZO,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 08-1147 PJH (PR)

vs.
JAMES TILTON, Secretary, CDCR; N.
GRANNIS, Chief, Inmate Appeals
Division; P. DELVILLAR; MICHAEL
EVANS; G. A. NEOTTI; K. JONES; R.
A. KESSLER; G. LEWIS; P. ROGUE; G.
R. SALAZAR; N. CLARK; A. KUHNERT;
A. VILLALOBOS; Sergeant HOGDAN;
and Lieutenant MAJIEA,

ORDER DENYING
PLAINTIFF’S MOTION FOR
RELIEF FROM JUDGMENT

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Defendants.
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/
This pro se civil rights action filed by a state prisoner. Plaintiff was granted leave to

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proceed in forma pauperis (“IFP”) in an order entered on October 3, 2008, and ordered to

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pay a partial initial filing fee of $128.00 within thirty days. See 28 U.S.C. § 1915(b)(1)

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(requiring district courts to assess and collect partial initial filing fees from prisoners allowed

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to proceed IFP). He did not pay the partial filing fee. On December 4, 2008, the court

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dismissed the case for failure to comply with its order to pay a partial filing fee.

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On March 16, 2009, plaintiff wrote to the court saying that the prison had failed to

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send the partial filing fee in time, causing his case to be dismissed, and that despite its

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being dismissed, was continuing to take money out of his account. He asked the court to

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order the prison to return any money it had taken and that the court return any of the filing

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fee it had received. Later he wrote another letter reiterating the same points.

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Plaintiff now has filed a motion for relief from judgment pursuant to Rule 60(b)(6) of
the Federal Rules of Civil Procedure. He emphasizes that he does not want the case

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reinstated, but just wants his money back. The court now has received the entire $350

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filing fee.

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Plaintiff misunderstands how in forma pauperis status works. Being granted that

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status forgives only prepayment of the filing fee, that is, the obligation to pay upon filing.

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The filing fee is owed once the case is filed, and prisoners are required to pay the full

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amount by way of an installment payment plan, as indeed plaintiff has. See 28 U.S.C.

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§ 1915(b)(1). The filing fee is not forgiven just because the case has been dismissed; it is

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a fee for filing, not a fee for continuing. The motion for relief from judgment (document

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number 12 on the docket) is DENIED.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
Dated: September 13, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\CR.08\MILANZO1147.RECON.wpd

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