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Osiel Rodriguez v. Janice G. Mcleod

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 2, 2011

OSIEL RODRIGUEZ,
PLAINTIFF,
v.
JANICE G. MCLEOD, ROBERT E. MCFADDEN, AND HARLAN W. PENN,
DEFENDANTS.

The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S MOTION REQUESTING ENFORCEMENT OF THIS COURT'S PREVIOUS ORDER REGARDING COLLECTION OF FEES (Document 29)

Plaintiff Osiel Rodriguez ("Plaintiff") is a federal prisoner at the United States Penitentiary in Florence, Colorado. On February 1, 2008, Plaintiff filed a complaint in this Court, and shortly thereafter his application to proceed in form pauperis was granted. (Docs. 1 &5.) Plaintiff's sought clarification of the Court's order regarding the collection of fees from his inmate trust account, and the Court issued a second order on the issue. (Docs. 17 & 18.)

On December 9, 2008, District Judge Lawrence J. O'Neill issued an interim order on Defendants' motion for summary judgment, and ultimately granted the motion on December 18, 2008. Judgment was entered in favor of Defendants and the case closed. (Docs. 23 & 25-26.)

On December 13, 2010, Plaintiff filed his "Motion Requesting the Court's Enforcement of its Order Directing Collection of Inmate Filing Fee" wherein he seeks assistance from this Court because, Plaintiff alleges, staff at the penitentiary are violating this Court's order by collecting fees from his inmate trust account even when the balance of his account is less than ten dollars. (Doc. 29.)

On December 22, 2010, this Court issued an Interim Order wherein Plaintiff was granted an opportunity to provide the Court with "documentation to support his assertion that fees are being collected from his inmate trust account at times when the total balance of the account is less than $10.00." (Doc. 30.)

On January 7, 2010, Plaintiff's response to the Court's order was received and filed. Plaintiff attached two exhibits to his response, the first being a handwritten list labeled "Transaction Reference Numbers." Plaintiff explains that it is "a listing of transaction reference numbers (in chronological order), totaling 25 instances where the penitentiary has collected funds" when the balance of his inmate trust account was less than $10.00. (Doc. 31 at 1-2 & Ex.A.) The second exhibit is entitled "Response to Inmate Request to Staff Member." Plaintiff explains that this document is a response from the penitentiary's financial management department to his inquiry "requesting to know if they were aware of the court's rule for collection of PLRA payments." (Doc. 31 at 2 & Ex. B.)

Despite being given an additional opportunity to provide the Court with evidence to support his claim the incarcerating institution was improperly withdrawing funds from his inmate trust account, Plaintiff has failed to provide such proof. Exhibit A to Plaintiff's response filed January 7, 2011, is insufficient. Plaintiff's own handwritten list of purported transaction numbers is not proof that funds were deducted from his inmate trust account when the balance of the account was less than $10.00.

Morever, Exhibit B to Plaintiff's response is ambiguous. It reads, in part: Per court order, you are obligated to make monthly payments of 20% of the preceding months total income exceeding $10.00. The amount encumbered is not based on the dollar amount fo the deposit received on your account. Twenty percent of all incoming funds will be encumbered towards your monthly PLRA payments. (Doc. 31, Ex. B.) Therefore, this document is also not proof that funds were deducted from Plaintiff's inmate trust account in contravention of the Court's February 12, 2008, Order.

ORDER

For the foregoing reasons, Plaintiff's "Motion Requesting the Court's Enforcement of Its Order Directing Collection of Inmate Filing Fee" (Doc. 29) is DENIED.

IT IS SO ORDERED.

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20110202

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