(PC) Bazzo v. Brazil

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 FRANK MONACO BAZZO, Case No. 1:24-cv-00768-BAM (PC) 8 Plaintiff, ORDER CONSTRUING REQUEST FOR JUDICIAL NOTICE AS MOTION FOR 9 v. RELIEF FROM FILING FEE (ECF No. 10) 10 BRAZIL, et al., DENYING MOTION FOR RELIEF FROM 11 Defendants. FILING FEE (ECF No. 10) 12 ORDER DIRECTING CLERK OF COURT TO 13 RE-SERVE JULY 18, 2024 ORDER ON PLAINTIFF 14 15 Plaintiff Frank Monaco Bazzo (“Plaintiff”) is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s motion to 17 proceed in forma pauperis was granted on July 18, 2024. (ECF Nos. 8, 9.) 18 On November 14, 2024, Plaintiff filed a document titled “Request for Judicial Notice 19 Strike Fee.” (ECF No. 10.) In the filing, Plaintiff states that the trust office statement reflects a 20 $350 fee from this Court, even though Plaintiff is indigent and cannot pay the fee. Plaintiff 21 requests that the Court strike the fee or request a certified account verification of by the trust 22 office reflecting a balance of $0.38. Plaintiff further states that the last communication he 23 received from the Court was on July 2, 2024. Plaintiff attaches a copy of his inmate trust 24 statement. (Id.) The Court construes the filing as a motion for relief from the filing fee. 25 Plaintiff is informed that although the Court found that Plaintiff was unable to prepay the 26 filing fee for this action, he remains obligated to pay the full amount of the filing fee. In the 27 Court’s July 18, 2024 order granting Plaintiff’s motion to proceed in forma pauperis, it was 28 explained to Plaintiff that he was obligated to pay the statutory filing fee of $350.00 for this 1 action, in monthly payments of twenty percent of the preceding month’s income credited to his 2 trust account. (Id. at 2.) The Director of the California Department of Corrections or his 3 designee was ordered to send to the Clerk of the court payments from Plaintiff’s account each 4 time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full. (Id. 5 (citing 28 U.S.C § 1915(b)(2))). The entire $350.00 filing fee is statutorily required, and must be 6 collected from Plaintiff’s institutional account regardless of the outcome of this action. See, e.g., 7 Myers v. Pulido, No. 1:16-cv-00638-SAB-PC, 2016 WL 6723937, at *1 (E.D. Cal. Nov. 14, 8 2016). 9 Plaintiff is also reminded that when he completed his application to proceed in forma 10 pauperis, he signed the application and “authorize[d] the agency having custody of me to collect 11 from my trust account and forward to the Clerk of the United States District Court payments in 12 accordance with 28 U.S.C. section 1915(b)(2).” (ECF No. 8, p. 2.) The fact that Plaintiff 13 currently does not have money in his trust account does not remove his obligation to pay the 14 filing fee from future deposits to his account. As a result, Plaintiff’s motion to be relieved of the 15 obligation to pay this fee is denied. 16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. Plaintiff’s request for judicial notice, (ECF No. 10), is CONSTRUED as a motion for 18 relief from the filing fee; 19 2. Plaintiff’s motion for relief from the filing fee, (ECF No. 10), is DENIED; and 20 3. The Clerk of the Court is DIRECTED to re-serve the July 18, 2024 order granting 21 Plaintiff’s motion to proceed in forma pauperis, (ECF No. 9), on Plaintiff at his current 22 address of record. 23 IT IS SO ORDERED. 24

25 Dated: November 18, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26

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