(PC) Nevarez v. Klein ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID DANIEL NEVAREZ, No. 21-cv-01752-ADA-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM FILING FEE 13 v. (ECF No. 12) 14 KLEIN, et al., 15 Defendant. 16 17 Plaintiff David Daniel Nevarez is a state prisoner who previously filed a civil rights action 18 pursuant to 42 U.S.C. § 1983, proceeding pro se and in forma pauperis. 19 On March 2, 2022, the court screened Plaintiff’s complaint and issued an order granting 20 him leave to file either a first amended complaint or a notice of voluntary dismissal. (ECF No. 21 10.) Plaintiff subsequently filed a notice of voluntary dismissal, and the Court terminated this 22 action without prejudice. (ECF Nos. 10, 11.) 23 Currently before the Court is a November 18, 2022 letter from Plaintiff filed as a Motion 24 for Relief from Filing Fee. (ECF No. 12.) In the letter, Plaintiff states that the Court notified him 25 that he filed in the wrong court, but that he could pull back his case, which he did. (Id.) The 26 letter further states that Plaintiff does not understand why he must still pay the $350.00 filing fee 27 and that he does not have enough money to pay the fee. (Id.) 28 /// 1 First, the Court notes that the Magistrate Judge’s screening order does not state that 2 Plaintiff had filed in the wrong court, but rather advises him that his complaint fails to state a 3 cognizable claim for relief. (ECF No. 9 at 4.) Second, in his application to proceed in forma 4 pauperis, filed December 10, 2021, Plaintiff authorized the withdrawal of funds from his trust 5 account for the purpose of payment of the filing fee. (ECF No. 2 at 2.) The Court granted 6 Plaintiff’s motion to proceed in forma pauperis in this action on December 22, 2021. (ECF No. 7 8.) In that order, the Court explained to Plaintiff that, while he was relieved of the obligation to 8 pre-pay the filing fee in this action, he was still obligated to pay the statutory filing fee of 9 $350.00, in monthly payments of twenty percent of the preceding month’s income credited to his 10 trust account. (Id. at 2.) The Director of the California Department of Corrections, or a designee, 11 was ordered to send the Clerk of Court payments from Plaintiff’s account each time the amount in 12 the account exceeds $10.00, until the statutory filing fee is paid in full. (Id. (citing 28 U.S.C. § 13 1915(b)(2))). 14 The entire $350.00 filing fee is statutorily required, and the Court must collect it from 15 Plaintiff’s institutional account regardless of the outcome of the action. See, e.g., Myers v. 16 Pulido, No. 1:16-cv-00638-SAB-PC, 2016 WL 6723937, at *1 (E.D. Cal. Nov. 14, 2016); see 17 also Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (“Under the PLRA, all prisoners who 18 file IFP civil actions must pay the full amount of the filing fee.”). Plaintiff’s decision to dismiss 19 this action voluntarily does not warrant relief from paying the filing fee. To the extent Plaintiff 20 believes he is required to pay the $350.00 as a lump sum, however, that belief is incorrect. The 21 Director of the California Department of Corrections, or a designee, must continue to collect 22 funds from Plaintiff’s institutional account in accordance with the instructions the Magistrate 23 Judge provided in the order granting Plaintiff’s motion to proceed in forma pauperis. (See ECF 24 No. 8.) 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 1. Plaintiff's motion for relief from the filing fee, (ECF No. 12), is denied; and 3 2. This action remains closed. 4 5 6 | TPIS SO ORDERED. 7 Dated: _ December 20, 2022 3 UNITED fTATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28