(PC) Prestfield v. Zakhary ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER PRESTFIELD, Case No. 1:20-cv-01551-NONE-EPG (PC) 12 Plaintiff, ORDER DENYING MOTION TO WAIVE OR DELAY THE COLLECTION OF THE CASE 13 v. FILING FEE 14 GEORGE M. ZAKHARY, (ECF NO. 36) 15 Defendant. 16 17 Plaintiff Christopher Prestfield is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on 19 Plaintiff’s claim that Defendant violated his 14th Amendment rights by failing to obtain his 20 informed consent in operating on Plaintiff to repair a facial fracture because Defendant did not 21 advise Plaintiff of the specific risk of severe post-operative neurological pain. (ECF No. 5). 22 On September 17, 2021, Plaintiff filed a “petition for possible resolution and dismissal 23 of case.” (ECF No. 36). For the reasons that follow, the Court will construe the filing as a 24 motion to waive or delay the collection of the case filing fee. See Fed. R. Civ. P. 7(b)(1) (“A 25 request for a court order must be made by motion.”). 26 Plaintiff’s filing states that defense counsel has indicated a “willingness to resolve and 27 dismiss this action” and “to waive all court costs on the Defendant’s part in exchange for a 28 dismissal with prejudice.” (Id. at 1). Plaintiff’s states that he “is willing to do that provided that 1 |} the Court will either waive the filing fee and court costs in the case, or at a minimum defer 2 || Plaintiffs obligation to pay filing fees or court costs for one year, till September 24th of 2022.” 3 || Ud. at 1-2). Plaintiff fails to explain the reasoning behind this request, but generally indicates 4 || that his motivation stems from “a new book [that he authored] coming out in 2022.” (Ud. at 2). 5 || For the following reasons, the Court will deny the construed motion. 6 Because Plaintiff is proceeding in forma pauperis, the payment of the $350.00 statutory 7 || filing fee is required by 28 U.S.C. § 1915(b)(1) and this Court’s previous order permitting 8 || Plaintiff to proceed in forma pauperis. (ECF No. 4). The Court has no authority to waive or 9 || delay payment of the filing fee as part of the terms of Plaintiff's agreement to dismiss this 10 || action. See In re Harris, No. 96-CV-03827-DLJ (PR), 2017 WL 6883927, at *1 (N.D. Cal. 11 || Nov. 17, 2017) ‘Accordingly, Plaintiff’s request to dismiss or forgive the filing fees in the 12 || above-reference actions is DENIED on the ground that the Court has no authority to waive the 13 || filing fees.”). However, the Court notes that under § 1915(b)(2) and this Court’s previous order 14 || permitting Plaintiff to proceed in forma pauperis, Plaintiff is required to pay the filing fee only 15 increments, specifically in an amount equal to twenty percent (20% ) of the preceding 16 || month’s income credited to the Plaintiff's trust account each time the amount in the account 17 || exceeds $10.00 until a total of $350.00 has been collected. (ECF No. 4). 18 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion to waive or delay 19 || the collection of the case filing fee (ECF No. 36) is denied.' 20 IT IS SO ORDERED. 22! Dated: _ September 20, 2021 [spe hey —— 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 |} —— 28 ! Should the parties seek to voluntarily dismiss this case, they are referred to the requirements of Federal Rule of Civil Procedure 41(a).