Hughey v. Kernan

Filing 19

ORDER - IT IS HEREBY ORDERED that Plaintiffs request to remove the $350 filing fee and $10,000 restitution fine from his prison trust account is denied. This case remains closed. Signed by District Judge William Q. Hayes on 5/9/2022.(All non-registered users served via U.S. Mail Service)(ave)

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Case 3:18-cv-00313-WQH-BGS Document 19 Filed 05/09/22 PageID.185 Page 1 of 2 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 FREDDIE HUGHEY, CDCR #E-95781, Case No.: 18-cv-313-WQH-BGS ORDER Plaintiff, 11 vs. 12 13 14 SCOTT KERNAN, Secretary at CDCR, Defendant. 15 16 HAYES, Judge: 17 On April 15, 2022, Plaintiff Freddie Hughey, proceeding pro se and incarcerated at 18 Richard J. Donovan Correctional Facility in San Diego, California, filed a letter requesting 19 that the Court “remove” from his prison trust account the $350 filing fee related to the 20 above-captioned action and a $10,000 restitution fine imposed by a California state court. 21 (ECF No. 17 at 2). As the Court explained in the May 21, 2018 Order granting Plaintiff’s 22 Motion to Proceed In Forma Pauperis, the $350 filing fee required by 28 U.S.C. § 1914 is 23 required to be paid pursuant to the payment provisions set forth in 28 U.S.C. § 1915(b)(1). 24 (ECF No. 4 at 2-3). Section 1915(b) does not grant a court discretion to “remove” the filing 25 fee from a prison trust account. See 28 U.S.C. § 1915(b)(1) (“[I]f a prisoner brings a civil 26 action or files an appeal in forma pauperis, the prisoner shall be required to pay the full 27 amount of a filing fee.”) (emphasis added); see also Taylor v. Delatoore, 281 F.3d 844, 28 851 (9th Cir. 2002) (holding that § 1915(b) is constitutional). 1 18-cv-313-WQH-BGS Case 3:18-cv-00313-WQH-BGS Document 19 Filed 05/09/22 PageID.186 Page 2 of 2 1 Similarly, this Court has no authority to “remove” the $10,000 restitution fine 2 imposed by the California state court. In his Complaint filed in this Court, Plaintiff claimed 3 that he was entitled to early parole consideration and did not seek any relief related to the 4 $10,000 restitution fine. On March 5, 2019, Judgment was entered in favor of Defendant 5 in this case and, accordingly, the time for Plaintiff to amend his pleadings to add a claim 6 related to the restitution fine has expired. If Plaintiff wishes to challenge or otherwise 7 “remove” the fine, he must file a new action in the appropriate court. 8 9 10 IT IS HEREBY ORDERED that Plaintiff’s request to remove the $350 filing fee and $10,000 restitution fine from his prison trust account is denied. This case remains closed. Dated: May 9, 2022 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 18-cv-313-WQH-BGS

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