Gipbsin v. Kernan

Filing 20

ORDER signed by Magistrate Judge Dale A. Drozd on 08/03/11 denying 19 Motion to dismiss. Within 30 days of the date of service of this order, plaintiff shall file an amended complaint. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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No. CIV S-10-1840 LKK DAD P

vs.
SCOTT KERNAN, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a motion to voluntarily

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dismiss this civil rights action. However, in his motion, plaintiff makes clear that his withdrawal

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of all claims is contingent on the court vacating its order requiring him to pay the filing fee.

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Plaintiff is advised that the court will not vacate its order requiring him to pay the

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filing fee for this case. It is well established that litigant filing fees are part of the cost of

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litigation. See 28 U.S.C. § 1920. Prisoner cases are no exception. In fact, “[a] congressional

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

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feel the deterrent effect created by liability for filing fees.’” See Goins v. Decaro, 241 F.3d 260,

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261 (2d Cir. 2001). Accordingly, the court will deny plaintiff’s motion to dismiss without

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prejudice.

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If plaintiff no longer wishes to proceed with this action he may file another

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motion to voluntarily dismiss this action. Otherwise, plaintiff will be required to file an amended

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complaint in accordance with this court’s screening order. Failure to file an amended complaint

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or otherwise respond to the court’s order will result in a recommendation for dismissal of this

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action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to dismiss (Doc. No. 19) is denied without prejudice; and

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2. Within thirty days of the date of service of this order, plaintiff shall file an

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amended complaint. Failure to file an amended complaint or otherwise respond to this order will

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result in a recommendation for dismissal of this action.

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DATED: August 3, 2011.

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DAD:9
gipb1840.mtd

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