(PC) Bustillos v. Hernandez et al

Filing 10

ORDER DENYING Plaintiff's #9 Motion to Voluntarily Dismiss Action, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 11/14/2023. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT JOHN BUSTILLOS,

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Plaintiff,
v.
HERNANDEZ, et al.,

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No. 1:23-cv-01365-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO VOLUNTARILY DISMISS ACTION,
WITHOUT PREJUDICE
(ECF No. 9)

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion to voluntarily dismiss the action and stop
the collection of the filing fee, filed November 13, 2023.
“[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action

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prior to service by the defendant of an answer or a motion for summary judgment.” Commercial

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Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and

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citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is

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required, the parties are left as though no action had been brought, the defendant can't complain,

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and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has

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been served in this action and no defendant has filed an answer or motion for summary judgment.

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However, Plaintiff is advised that voluntary dismissal does not entitle a litigant to a refund

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of the filing and docketing fees. Porter v. Dep’t of Treasury, 51 V.I. 1212, 1216 (3d Cir. 2009).

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Under the PLRA, once a prisoner is granted leave to proceed in forma pauperis, the prisoner is

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obligated to pay the fees in full. Porter, 51 V.I. at 1218 n.4. The filing fee is assessed for the

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privilege of initiating the matter, without regard to the subsequent disposition. Williams v.

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Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997), as revised (July 23, 1997). In fact, “[a]

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congressional objective in enacting the PLRA was to ‘mak[e] all prisoners seeking to bring

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lawsuits or appeals feel the deterrent effect created by liability for filing fees.’ ” Goins v. Decaro,

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241 F.3d 260, 261 (2d Cir. 2001). Plaintiff filed this action which triggered the obligation to pay

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a filing fee cannot be discharged because he subsequently wishes to voluntarily dismiss the

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action. Here, the Court granted Plaintiff's request for leave to proceed in forma pauperis,

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obligating him to pay the filing fee in full through monthly payments. (ECF No. 6); 28 U.S.C. §

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1915(b)(1). Accordingly, the Court cannot stop the collection of the filing fee. Inasmuch as

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Plaintiff’s motion to dismiss is contingent upon the filing fee payment, Plaintiff’s motion to

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voluntarily dismiss the action is denied, without prejudice, to re-filing if so desired.

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IT IS SO ORDERED.
Dated:

November 14, 2023
UNITED STATES MAGISTRATE JUDGE

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