The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING MOTIONS (Doc. 51, 52)
Plaintiff Barry S. Jameson ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed two motions requesting a refund for the overpayment of his filing fee for this action. For the reasons set forth below, the Court finds that Plaintiff is not entitled to a refund on the grounds that he sets forth in his motions. However, the Court finds that Plaintiff's in forma pauperis status was erroneously denied. Because Plaintiff should not have been directed to pay the filing fee for this action in full, the Court will refund the $150.00 filing fee it received from Plaintiff and allow Plaintiff to proceed in forma pauperis.
I. Plaintiff's Motions for a Refund
Plaintiff claims that he has overpaid for his filing fee and demands a refund of the excess amount. The filing fee for this action was $150.00. Plaintiff's application to proceed in forma pauperis was initially granted by the Court and Plaintiff was allowed to proceed without paying the filing fee in full. (Doc. #6.) Plaintiff was instead allowed to make partial payments from his prison trust account until the filing fee was paid. The Court received an initial payment of $44.30 from Plaintiff's trust account. However, the Court thereinafter issued an order to show cause noting that Plaintiff had, on three prior occasions, brought civil actions challenging the conditions of his confinement that were dismissed as frivolous or for failing to state a claim upon which relief can be granted. (Doc. #33.) A prisoner with three "strikes" may not proceed in forma pauperis under 28 U.S.C. § 1915(g). A findings and recommendations was issued recommending the denial of Plaintiff's in forma pauperis status (doc. #34) which was adopted on August 2, 2007 (doc. #39). Plaintiff was directed to pay the $150.00 filing fee in full. Plaintiff claims his brother attempted to pay the remaining balance of $105.70 on Plaintiff's behalf after Plaintiff's in forma pauperis status was denied. However, Plaintiff's brother contacted the Court and was told that Plaintiff owed the entire $150.00 balance. Plaintiff's brother submitted a payment of $150.00. In investigating what went wrong, Plaintiff claims that he was told that his initial $44.30 payment was applied toward the filing fee for his Ninth Circuit appeal. The filing fee for Plaintiff's appeal was $455.00. Plaintiff claims that he did not authorize the Court to apply the $44.30 payment towards the filing fee for his appeal. Plaintiff demands that the Court issue a refund for the $44.30 "overpayment" that was erroneously applied toward his Ninth Circuit appeal.
The Court advises Plaintiff that his obligated to pay both filing fees. The payments for both filing fees must be forwarded to the district court. Thus, Plaintiff's payment was not an "overpayment" because Plaintiff was obligated to pay a total of $605.00 to the district court for both filing fees. Plaintiff is not entitled to a refund of $44.30 and on that basis Plaintiff's motions will be denied.
II. Plaintiff's In Forma Pauperis Status
While Plaintiff is not entitled to a refund of $44.30 as an "overpayment," the Court finds that Plaintiff should be granted leave to proceed in forma pauperis and should not have been required to pay the $150.00 filing fee for this action in full. Plaintiff appealed this Court's denial of his in forma pauperis status to the Ninth Circuit. The Ninth Circuit reversed this Court's decision to deny Plaintiff leave to proceed in forma pauperis in this action. (Doc. #53.) Plaintiff's in forma pauperis status for this action should be reinstated. Additionally, because Plaintiff's in forma pauperis status should not have been denied, Plaintiff should not have been directed to pay the $150.00 filing fee in full. The Court will order that Plaintiff be issued a refund of the $150.00 he has paid out-of-pocket in response to the Court's order.
III. Conclusion and Order
Plaintiff is not entitled to a refund of $44.30 due to an "overpayment." Plaintiff is obligated to pay both the $150.00 filing fee for this action and the $455.00 filing fee for his appeal. Plaintiff has thus far paid $194.30. After issuing the $150.00 refund, Plaintiff will have paid $44.30.*fn1
Plaintiff has been given leave to proceed in forma pauperis for his Ninth Circuit appeal. Plaintiff will also be given leave to proceed in forma pauperis in this action. Plaintiff is obligated to make monthly payments in the amount of twenty percent of the proceeding month's income credited to Plaintiff's trust account. The California Department of Corrections is required to send to the Clerk of the Court payments from Plaintiff's account each time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Plaintiff's motion requested that the Court issue a refund to his brother. However, because Plaintiff is entitled to a refund on different grounds, the Court will decline to forward the refund to Plaintiff's brother on Plaintiff's behalf. The Court will direct that the refund of $150.00 be sent to Plaintiff at the address that the Court has on file.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's motions, filed on July 6, 2009, and August 6, ...