Murillo v. Ramos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 R. MONA MURILLO, Case No.: 3:22-cv-548-MMA (AGS) CDCR #P-43503, 12 ORDER DENYING MOTION FOR Plaintiff, 13 RECONSIDERATION vs. 14 [Doc. No. 13] A. RAMOS, et al., 15 Defendants. 16 17 18 On April 22, 2022, Plaintiff attempted to file a Complaint pursuant to 42 U.S.C. 19 § 1983, but the Court struck the pleading for failure to comply with General Order 653A. 20 See Doc. Nos. 1, 2. Plaintiff later properly filed a First Amended Complaint on May 12, 21 2022. See Doc. No. 6. Plaintiff was granted until August 31, 2022, to either pay the 22 required initial civil filing fee of $402 or file a Motion to Proceed In Forma Pauperis 23 (“IFP”). See Doc. No. 10. 24 On July 25, 2022, Plaintiff filed a Motion to Proceed IFP. See Doc. No. 11. The 25 Court denied Plaintiff’s motion, finding that Plaintiff had sufficient funds to pay the 26 initial civil filing fee (the “IFP Order”). See Doc. No. 12 at 4. Plaintiff was given the 27 opportunity to pay the $402 initial filing fee by September 2, 2022, but instead, Plaintiff 28 has filed a Motion for Reconsideration of the Court’s IFP Order. See Doc. No. 13. 1 DISCUSSION 2 A. Standard of Review 3 The Federal Rules of Civil Procedure do not expressly provide for motions for 4 reconsideration. However, S.D. Cal. Civil Local Rule 7.1(i) does permit motions for 5 reconsideration “[w]henever any motion or any application or petition for any order or 6 other relief has been made to any judge ... has been refused in whole or in part.” S.D. 7 Cal. CivLR 7.1(i). The party seeking reconsideration must show “what new or different 8 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 9 such prior application.” Id. Local Rule 7.1(i)(2), permits motions for re consideration 10 within “30 days of the entry of the ruling.” 11 A motion for reconsideration filed pursuant to a Local Rule may also be construed 12 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck 13 v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development 14 Co., 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a 15 post-judgment motion will be considered a Rule 59(e) motion where it involves 16 ‘reconsideration of matters properly encompassed in a decision on the merits.’” 489 U.S. 17 at 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 18 (1982)). A district court may grant a Rule 59(e) motion if it “‘is presented with newly 19 discovered evidence, committed clear error, or if there is an intervening change in the 20 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell 21 v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. 22 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 23 B. Analysis 24 In Plaintiff’s Motion for Reconsideration, which is timely filed pursuant to S.D. 25 Cal. CivLR 7.1(i)(2), she seeks reconsideration of the Court’s denial of her IFP motion. 26 See Doc. No. 13 at 1. Specifically, Plaintiff indicates that she really is indigent and if she 27 had to pay the $402 filing fee “she could not afford the necessities of life.” Id. She 28 further states that if the Court “does not want to grant full [IFP] status” that she is willing 1 to make an initial partial payment of $125.00. Id. at 4. 2 In 1996, Congress enacted the Prison Litigation Reform Act (PLRA”) that, among 3 other measures, “required prisoners to pay filing fees for the suits or appeals they 4 launch.” Bruce v. Samuels, 577 U.S. 82, 85 (2016). The relevant provisions on fee 5 payment, set forth in § 1915(b), reads: 6 (1) . . . [I]f a prisoner brings a civil action or files an appeal in forma pauperis, 7 the prisoner shall be required to pay the full amount of a filing fee. The court 8 shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater 9 of— 10 (A) the average monthly deposits to the prisoner’s account; or 11 12 (B) the average monthly balance in the prisoner's account for the 6– month period immediately preceding the filing of the complaint or 13 notice of appeal. 14 (2) After payment of the initial partial filing fee, the prisoner shall be required 15 to make monthly payments of 20 percent of the preceding month’s income 16 credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court 17 each time the amount in the account exceeds $10 until the filing fees are paid. 18 19 Id. (citing 28 U.S.C. § 1915(b)(1), (2) (emphasis added)). 20 The statutory language of 28 U.S.C. § 1915 requires the Court to assess a partial 21 initial payment if the Court determines that a plaintiff can proceed IFP. As set forth 22 above, the initial partial filing fee must be calculated by assessing 20 percent of whatever 23 is greater, the average monthly deposits or the average monthly balance in a prisoner’s 24 account over a six-month period. See 28 U.S.C. § 1915(b)(1)(A); 28 U.S.C. 25 § 1915(b)(1)(B). 26 Here, the information before the Court demonstrated that Plaintiff had $1766.27 in 27 average monthly deposits for the six months prior to filing this action. See Doc. No. 3 at 28 1. Using the required calculation to assess 20 percent of this amount, the Court would 1 have been required to impose an initial partial filing fee of $353.25. In addition, 2 Plaintiff had a balance of $1429.02 at the time this assessment was calculated, which 3 demonstrated that she had the ability to pay it. The statute gives no discretion to the 4 Court to accept a lower amount as suggested by Plaintiff. However, to the extent that 5 Plaintiff indicates that her financial status has changed since filing this action, the Court 6 will permit her to file a renewed Motion to Proceed IFP one final time. If Plaintiff 7 chooses to file a renewed motion which is granted by the Court, she is cautioned that if 8 the assessment of the initial partial filing fee is still $350.00 or more, she will have the 9 entire $350.00 statutory filing fee garnished. 10 CONCLUSION 11 For the reasons set forth above, the Court DENIES Plaintiff’s Motion for 12 Reconsideration. 13 The Court GRANTS Plaintiff forty-five (45) days from the date of this Order in 14 which to re-open the case by either: (a) prepaying the entire $402 civil filing and 15 administrative fee in one lump-sum; or (b) filing a renewed Motion to Proceed IFP, 16 which includes a prison certificate signed by a RJD trust accounting official attesting to 17 Plaintiff’s trust account balances and deposits, and a certified copy of Plaintiff’s most 18 current CDCR Inmate Statement Report pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 19 CivLR 3.2(b). 20 The Court DIRECTS the Clerk of the Court to provide Plaintiff with a Court- 21 approved form “Motion and Declaration in Support of Motion to Proceed In Forma 22 Pauperis.” 23 If Plaintiff neither pays the $402 civil filing fee in full nor sufficiently completes 24 and files a renewed Motion to Proceed IFP with a certified copy of her 6-month trust 25 26 1 Plaintiff’s actual assessment is calculated to be $353.52. However, this assessment exceeds the 27 statutory amount of $350, in addition to which there is a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). 28 1 account statements within 45 days, a final judgment of dismissal will be entered. 2 IT IS SO ORDERED. 3 Dated: August 25, 2022 4 Miku U - Lhiollr 5 HON. MICHAEL M. ANELLO 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28