Spruiell v. Doe

Filing 11

ORDER ACKNOWLEDGING PLAINTIFF'S VOLUNTARY DISMISSAL OF THIS ACTION; AND DENYING HIS REQUEST TO WAIVE FILING FEE re 10 Letter filed by Damein Dion Spruiell. Signed by Magistrate Judge Donna M. Ryu on 8/11/17. (ig, COURT STAFF) (Filed on 8/11/2017).

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

DAMEIN DION SPRUIELL,

Case No. 17-cv-00427-DMR (PR)

Plaintiff,
9
v.
10
11

JOHN DOES 1-4,

ORDER ACKNOWLEDGING
PLAINTIFF’S VOLUNTARY
DISMISSAL OF THIS ACTION;
AND DENYING HIS REQUEST
TO WAIVE FILING FEE

United States District Court
Northern District of California

Defendants.
12
13

Plaintiff Damein Dion Spruiell, a state prisoner, filed a pro se civil rights action pursuant

14

to 42 U.S.C. § 1983 stemming from his incarceration at Pelican Bay State Prison (“PBSP”).

15

Plaintiff has consented to magistrate judge jurisdiction, and this matter has been assigned to the

16

undersigned Magistrate Judge. Dkt. 3.

17
18
19

In a letter filed on August 1, 2017, Plaintiff states that he seeks “voluntary withdraw[al]”
of the instant action. Dkt. 10 at 1. He also requests that the court waive “any filing fees.” Id.
A plaintiff has the absolute right to dismiss his or her action by filing a notice of dismissal

20

“at any time before service by the adverse party of an answer or of a motion for summary

21

judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). Said dismissal may be with or without prejudice, but

22

unless plaintiff’s notice of dismissal states otherwise, it is deemed to be “without prejudice.” See

23

Fed. R. Civ. P. 41(a)(1); Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959). No court

24

order is required. Plaintiff’s notice of dismissal is effective by itself to terminate the action: “[A]n

25

action may be dismissed by the plaintiff without order of the court . . . by filing a notice of

26

dismissal.” Fed. R. Civ. P. 41(a)(1); see also Hamilton v. Shearson-Lehman American Exp. Inc.,

27

813 F.2d 1532, 1534-36 (9th Cir. 1987) (rule 41(a)(1)(A)(i) does not require leave of court to

28

dismiss the action).

1

Plaintiff’s request for voluntary dismissal was filed before service by the adverse party of

2

an answer. Therefore, the court finds that Plaintiff has the absolute right to dismiss his action

3

voluntarily. See Fed. R. Civ. P. 41(a)(1)(A)(i). Based on Plaintiff’s request for voluntary

4

dismissal, the court acknowledges that this action is DISMISSED without prejudice. See id.

5

As mentioned above, Plaintiff also requests that the court waive all filing fees. Dkt. 10 at

6

1. Ordinarily, a petitioner/plaintiff is permitted to file a civil action in federal court without

7

prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give

8

security therefor. See 28 U.S.C. § 1915(a). The filing fee for a civil rights action is $400.00 (i.e.,

9

the $350.00 filing fee plus the $50.00 administrative fee). On July 19, 2017, the court denied
Plaintiff’s application to proceed in forma pauperis because his trust account documents revealed

11
United States District Court
Northern District of California

10

that he had more than adequate funds to pay the filing fee. Dkt. 8. Plaintiff was instructed that

12

that the fee shall be paid within twenty-eight days of its July 19, 2017 Order. Id. To date,

13

Plaintiff has not paid the full filing fee. Instead, he now requests that the court waive the filing

14

fee. Plaintiff’s request is DENIED on the ground that the court has no authority to waive the filing

15

fee. Notwithstanding the voluntary dismissal of this action, the court’s Finance Department may

16

still collect the $400.00 filing fee from Plaintiff, which is due on August 16, 2017.

17

The Clerk of the Court shall close the file and terminate all pending motions.

18

IT IS SO ORDERED.

19
20
21

Dated: August 11, 2017
______________________________________
DONNA M. RYU
United States Magistrate Judge

22
23
24
25
26
27
28
2

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

DAMEIN DION SPRUIELL,

Case No. 4:17-cv-00427-DMR

Plaintiff,
5
v.

CERTIFICATE OF SERVICE

6
7

JOHN DOE,
Defendant.

8
9
10

United States District Court
Northern District of California

11
12
13
14

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on August 11, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

15
16
17

Damein Dion Spruiell ID: T-70693
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95531

18
19

Dated: August 11, 2017

20
21

Susan Y. Soong
Clerk, United States District Court

22
23
24
25
26

By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU

27
28
3