(PC) Bustillos v. Hernandez et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT JOHN BUSTILLOS,
HERNANDEZ, et al.,
No. 1:23-cv-01365-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO VOLUNTARILY DISMISS ACTION,
(ECF No. 9)
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
prior to service by the defendant of an answer or a motion for summary judgment.” Commercial
Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and
citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is
required, the parties are left as though no action had been brought, the defendant can't complain,
and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has
been served in this action and no defendant has filed an answer or motion for summary judgment.
However, Plaintiff is advised that voluntary dismissal does not entitle a litigant to a refund
of the filing and docketing fees. Porter v. Dep’t of Treasury, 51 V.I. 1212, 1216 (3d Cir. 2009).
Under the PLRA, once a prisoner is granted leave to proceed in forma pauperis, the prisoner is
obligated to pay the fees in full. Porter, 51 V.I. at 1218 n.4. The filing fee is assessed for the
privilege of initiating the matter, without regard to the subsequent disposition. Williams v.
Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997), as revised (July 23, 1997). In fact, “[a]
congressional objective in enacting the PLRA was to ‘mak[e] all prisoners seeking to bring
lawsuits or appeals feel the deterrent effect created by liability for filing fees.’ ” Goins v. Decaro,
241 F.3d 260, 261 (2d Cir. 2001). Plaintiff filed this action which triggered the obligation to pay
a filing fee cannot be discharged because he subsequently wishes to voluntarily dismiss the
action. Here, the Court granted Plaintiff's request for leave to proceed in forma pauperis,
obligating him to pay the filing fee in full through monthly payments. (ECF No. 6); 28 U.S.C. §
1915(b)(1). Accordingly, the Court cannot stop the collection of the filing fee. Inasmuch as
Plaintiff’s motion to dismiss is contingent upon the filing fee payment, Plaintiff’s motion to
voluntarily dismiss the action is denied, without prejudice, to re-filing if so desired.
IT IS SO ORDERED.
November 14, 2023
UNITED STATES MAGISTRATE JUDGE
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