(PC) Miller v. Diaz

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS MILLER, Case No. 1:20-cv-1243-ADA-HBK (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S RENEWED MOTION TO PROCEED IN 13 v. FORMA PAUPERIS 14 B. CATES, FAYE MONTEGRANDE, (Doc. No. 28) OLUFEMI OWOLABI, U. BANIGA, 15 ORDER DIRECTING MONTHLY Defendants. INSTALLMENT PAYMENTS TOWARD 16 FILING FEE 17 Pending before the Court is Plaintiff’s renewed motion to proceed in forma pauperis 18 (“IFP”). (Doc. No. 28). Plaintiff, a former prisoner initiated this action while he was incarcerated 19 at California Correctional Institution. (Doc. No. 1). Although currently released, Plaintiff 20 remains obligated to pay the full amount of the statutory filing fee. 28 U.S.C. § 1915(b)(1). As 21 set forth in the Court’s July 31, 2023 Order, the total amount that remains due towards the 22 $350.00 filing fee is $350.00. (Doc. No. 27 at 3). Due to Plaintiff’s release from custody, there is 23 no inmate trust account from which periodic filing fees may be garnished and forwarded to the 24 Court. Although the Ninth Circuit has yet to decide how a released prisoner who is obligated to 25 “pay the full amount of a filing fee” under 28 U.S.C. § 1915(b)(1) may proceed IFP after he is 26 released, “the Ninth Circuit [did note] ‘even prior to the PLRA…district courts possessed 27 authority under the non-PLRA-related provisions of § 1915 to require partial and/or installment 28 payments.’” Makoni v. Downs, 2016 WL 7210403, at *3 (S.D. Cal. Dec. 13, 2016) (quoting 1 | Putzer v. Attal, 2013 WL 4519351, at *2 (D. Nev. Aug. 23, 2013)) (citing Olivares v. Marshall, 2 | 59 F.3d 109, 111 (9th Cir. 1995)). 3 Plaintiff's renewed motion to proceed IFP makes the showing required to proceed IFP, but 4 | consistent with the Prison Litigation Reform Act, Plaintiff remains obligated to pay the full 5 | $350.00 statutory filing fee as set forth in 28 U.S.C. § 1915. Pursuant to § 1915(b)(1), the Court 6 | will assess a monthly installment payment of $20.00, which is less than 2% of Plaintiffs reported 7 | monthly income. Plaintiff’s first installment payment will be due on October 2, 2023. Plaintiff 8 | shall continue to make monthly installment payments of $20.00 on or before the 2nd day of each 9 | succeeding month until the $350.00 filing fee is paid in full. 10 Accordingly, it is ORDERED: 11 1. No later than October 2, 2023, Plaintiff shall mail to the Clerk of Court his first 12 monthly installment payment of $20.00. The payment may be made by cashier’s 13 check, money order, or personal check and made payable to the Clerk of Court. 14 Plaintiff shall include his name and Case No. 1:20-cv-01243-ADA-HBK on the check. 15 2. Plaintiff shall continue to make $20.00 monthly installment payments to the Clerk of 16 Court on or before the 2nd day of each succeeding month until his $350.00 filing fee is 17 paid in full. 18 3. Plaintiffs failure to timely make the $20.00 monthly installment payment will result 19 in the undersigned recommending the district court dismiss this action. 20 | Dated: _ August 28, 2023 Mihaw. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

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