(PC) Bullette v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SONYA BULLETTE, Case No. 1:21-cv-01519-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO EXCLUDE STIMULUS FUNDS FOR 13 v. PAYMENT OF FILING FEE 14 WARDEN, (Doc. No. 7) 15 Defendants. 16 17 18 19 Pending before the Court is Plaintiff’s motion to exclude any stimulus monies from 20 payment of the filing fee for this action. (Doc. No. 7). Plaintiff is a prisoner who is proceeding 21 pro se on a civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff filed 22 a motion to proceed in forma pauperis on October 17, 2021. (Doc. No. 5). On November 17, 23 2021, the Court granted Plaintiff’s motion to proceed in forma pauperis; assessed an initial 24 payment of $123.69 based on Plaintiff’s average 6-month balance as required under 28 U.S.C. § 25 1915(b)(1)(B); and, directed correctional officials to make monthly payments of 20% of the 26 preceding month’s income credited to Plaintiff’s inmate trust account until the full $350.000 27 filing fee is paid as required by 28 U.S.C. § 1915(b)(2). (Doc. No. 6). Plaintiff objects to any 28 monies received from the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) 1 being used to pay the $350.00 filing fee. (Doc. No. 7). 2 Title 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment 3 of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the 4 plaintiff’s “is unable to pay such fees or give security therefor.” Under the PLRA, despite being 5 granted in forma pauperis status, all prisoners must pay the full amount of the fee. Id. 1915(b)(1). 6 The Court is unaware of any binding precedent that prevents “stimulus checks” from being 7 included when making an indigency determinization. Indeed, to the contrary, other courts in this 8 district have included the funds when determining whether to grant in forma pauperis status to 9 prisoners. See, e.g., Hammler v. Zydus Pharmacy, 2021 WL 3048380, at *1-2 (E.D. Cal. July 20, 10 2021) (considering the plaintiff’s “economic impact payments” when determining that the 11 plaintiff was “financially able to pay the filing fee”); Corral v. California Highway Patrol, No. 12 1:21-CV-00822-DAD-JLT, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021), report and 13 recommendation adopted, No. 1:21-CV-00822-DAD-JLT, 2021 WL 3488309 (E.D. Cal. Aug. 9, 14 2021) (considering stimulus payments in finding plaintiff not entitled to proceed in forma 15 pauperis). 16 The Court has not yet conducted a screening of Plaintiff’s Complaint under 28 U.S.C. § 17 1915A to determine whether the Complaint is deficient or appropriate for service for amendment. 18 Consequently, to the extent Plaintiff does not wish to pay the filing fee for this action, Plaintiff 19 may choose to voluntarily dismiss this action before the Court conducts its § 1915A screening. In 20 order to voluntarily dismiss this action, Plaintiff must file a Notice to Voluntarily Dismiss Action 21 Under Federal Rule of Civil Procedure 41,1 advise the Court that she wishes to dismiss her claim 22 and request a refund of any filing fees paid. Plaintiff must file the Notice within 14 days of 23 receipt of this Order, after which time the Court will undertake a screening of the Complaint and 24 Plaintiff will remain obligated to pay the full filing fee. 25 Accordingly, it is ORDERED: 26 1. Plaintiff’s motion to exclude “stimulus funds” from being used to pay the filing fee for 27 1 A party may terminate an action by operation of law without further order from the Court. Fed. R. Civ. P. 28 41(a)(1)(A)(i). 1 | this action (Doc. No. 7) is DENIED. Plaintiff remains obligated to pay the full $350.00 filing fee 2 | for this action. 3 2. If Plaintiff does not wish to litigate this action due to the requirement that she must pay 4 | the full filing fee despite proceeding in forma pauperis, Plaintiff may file a Notice to Voluntarily 5 | Dismiss Action Under Federal Rule of Civil Procedure 41 within fourteen (14) days of the 6 | receipt of this Order. The Court will then vacate its previous Order granting in forma pauperis 7 | status and assessing the full filing fee (Doc. No. 6) and direct the Clerk of Court to refund to 8 | Plaintiff any filing fees paid to date. 9 | Dated: _ May 16,2022 Mihaw. fareh Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28