Grindling v. Martone et al

Filing 21

ORDER DIRECTING ENTRY OF VOLUNTARY DISMISSAL. Signed by JUDGE LESLIE E. KOBAYASHI on 9/27/2012. ~ "The Clerk is DIRECTED to enter Plaintiff's notice of voluntary dismissal of this action on the docket [and to close this actio n.]" Order denies Motion to Refund Filing Fee (doc 18 ) and finds the remaining motions are moot (Motions, doc nos. 14 , 16 , 17 , 19 ). (afc)CERTIFICATE OF SERVICEParticipants registered to r eceive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Mr. Chris Grindling served this date with a copy of the instant order, a copy of the Complaint (doc no. 1 ) and a copy of the First Amended Complaint (doc no. 9 ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRIS GRINDLING, #A0721079,
Plaintiff,
vs.
FREDERICK MARTONE, et al.,
Defendants.

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CIV. NO. 12-00361 LEK/BMK
ORDER DIRECTING ENTRY OF
VOLUNTARY DISMISSAL

ORDER DIRECTING ENTRY OF VOLUNTARY DISMISSAL
Before the court is pro se prisoner Chris Grindling’s
Motion To Reconsider Dismissal of his first amended complaint
(“FAC”), ECF #14; Motion for Extension of Time to File Amended
Complaint, ECF #16; Motion for Filed Copy of Complaint, ECF #17;
Motion to Refund Filing Fee, ECF #18; and Motion to Clarify Order
Dismissing, ECF #19.

The Clerk is DIRECTED to enter Plaintiff’s

notice of voluntary dismissal of this action on the docket, send
Plaintiff copies of his original Complaint and FAC, and dismiss
this action.

Plaintiff’s remaining motions are DENIED.
I.

A.

DISCUSSION

Motion to Refund Filing Fee and Voluntary Dismissal of Case
In his Motion to Refund Filing Fee, Plaintiff asks the

court to refund his filing fee “due to Plaintiff[’s] voluntary
withdrawal of this case.”

ECF #18, PageID #134.

Plaintiff

declares that he “is unable to litigate due to court rulings that
have no reason logic or truth.”

Id. at PageID #135.

Plaintiff

apparently disagrees with the court’s orders dismissing his
Complaint and FAC, in particular, the court’s finding that
several of his claims admittedly occurred in Arizona and should
be litigated there, regardless of whether Hawaii defendants were
also allegedly involved.

See Dismissal Ord., ECF #8, PageID #68.

Plaintiff says that “every ruling every finding by this court
lacks any logic reason or truth there is no sense in prosecuting
a case with obvious bias.”

ECF #18 PageID #135.

The Federal Rules of Civil Procedure permit a plaintiff
to dismiss an action without a court order by filing (1) a notice
of dismissal before the opposing party serves an answer or a
motion for summary judgment or (2) a stipulation of dismissal
signed by all parties who have appeared.
41(a)(1).

Fed. R. Civ. P.

Plaintiff has not filed a second amended complaint,

therefore Defendants have neither received process nor answered
Plaintiff’s pleadings.

Plaintiff has an absolute right to

voluntarily withdraw his case here, and his request will be noted
on the docket.
Cir. 1995).

See Concha v. London, 62 F.3d 1493, 1506 (9th

The Clerk is DIRECTED to enter Plaintiff’s request

for voluntary dismissal on the docket and to close this action.
The court will not, however, refund Plaintiff’s filing
fee.

Plaintiff voluntarily chose to pay the full filing fee when

he commenced this action, undoubtedly because he has accrued
three strikes pursuant to 28 U.S.C. § 1915(g).

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See Ord. Granting

IFP Application, ECF #11, PageID #93-94 (detailing Plaintiff’s
strikes).

Because he paid the fee outright, however, the court

did not determine whether Plaintiff was eligible for in forma
pauperis (“IFP”) status by alleging imminent danger of serious
physical injury at the outset of this action.

After Plaintiff

filed his FAC, he requested IFP status for service of his
pleadings.

The court then reviewed the FAC, determined that

Plaintiff sufficiently alleged imminent danger of serious
physical injury, and granted Plaintiff’s request.

See ECF #11.

Predictably, Plaintiff now seeks a refund of the filing fee.
Title 28 U.S.C. § 1915 does not provide any authority
or mechanism for the court to waive payment of a prisoner’s
filing fee, or to return the filing fee after dismissal of an
action.

When it enacted the Prison Litigation Reform Act of 1995

(“PLRA”), Congress acted to impose financial disincentives for
prisoners filing lawsuits in forma pauperis.

See Lyon v. Krol,

127 F.3d 763, 764 (8th Cir.1997) (“Congress enacted PLRA with the
principal purpose of deterring frivolous prisoner litigation by
instituting economic costs for prisoners wishing to file civil
claims.

See, e.g., H.R. Conf. Rep. No. 104–378, at 166–67

(1995); 141 Cong. Rec. S14626 (daily ed.) (Sept. 29, 1995)
(statement of Sen. Dole)”).
Further, numerous court have found that the voluntary
dismissal of an action, whether filed by a prisoner or not, does

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not entitle the litigant to a refund of filing fees.

See Porter

v. Dept. of Treasury, 564 F.3d 176, 179-80 (3d Cir. 2009)
(denying a refund or waiver of remaining appellate filing fees to
a federal prisoner and refund of fees to a non-prisoner
litigant); Goins v. Decaro, 241 F.3d 260, 261 (2d Cir. 2001)
(finding that pro se inmates proceeding IFP were not entitled to
refund of appellate fees or to cancellation of indebtedness for
unpaid appellate fees after they withdrew their appeals);
Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) (stating
that fees are “assessed for the privilege of initiating an
appeal, without regard to the subsequent disposition of the
matter.”); and James v. Cropp, No. C12–5159, 2012 WL 1669727 *1
(W.D. Wash., April 13, 2012); see also Thurman v. Gramley, 97
F.3d 185, 187 (7th Cir. 1996) (overruled on other grounds by
Walker v. O'Brien, 216 F.3d 626 (7th Cir.2000)) (“A solvent
litigant must pay the filing and docketing fees for the privilege
of initiating an appeal; dismissal on jurisdictional grounds does
not lead the court to refund the appellant’s money.”).
Plaintiff is no a stranger to litigation in the federal
court nor to the fee provisions of the PLRA. The decision to file
and prosecute this case was made by Plaintiff before he filed
this case.

Having filed this case, Plaintiff and the court are

both statutorily limited by the strictures of 28 U.S.C. § 1915.
Therefore, Plaintiff’s motion for refund of the filing fee is

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DENIED.
B.

Plaintiff’s Remaining Motions
Because Plaintiff has voluntarily dismissed this

action, his remaining motions are moot.

Nonetheless, the Clerk

is DIRECTED to send Plaintiff copies of his original Complaint
and First Amended Complaints.
Even if Plaintiff’s voluntary withdrawal of this case
did not moot his remaining motions, the court would deny his
requests for reconsideration and clarification.

Under Rule 60.1

of the Local Rules for the District of Hawaii, which applies to
motions for reconsideration of interlocutory orders, there are
three bases for reconsideration: (1) Discovery of new material
facts not previously available; (2) Intervening change in law;
and (3) Manifest error of law or fact.

Plaintiff presents no new

material facts, intervening change in law, or manifest error of
law or fact.

Rather, Plaintiff wilfully misunderstands the

court’s careful explanation of why his claims are insufficient as
presented and simply, albeit vehemently, disagrees with the
court’s order dismissing the FAC.
reconsideration.

This is insufficient to merit

See Hawaii Stevedores, Inc. v. HT & T Co., 363

F. Supp. 2d 1253, 1269 (D. Haw. 2005).

Plaintiff’s arguments for

clarification manifest the same denial of the court’s explanation
and do not explain which part of the order requires
clarification.

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II.
1.

CONCLUSION

The Clerk is DIRECTED to enter Plaintiff’s notice

of voluntary dismissal, ECF #18, on the docket and terminate this
action.

The Clerk shall also mail a copy of Plaintiff’s original

Complaint, ECF #1, and First Amended Complaint, ECF #9, to
Plaintiff.
2.

Plaintiff’s request for refund of his filing fee is

3.

Plaintiff’s remaining motions, ECF #14, #16, and

DENIED.

#19 are DENIED as moot.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, September 27, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Grindling v. Martone, et al., 1:12-cv-00361 LEK/BMK; ORDER DIRECTING ENTRY OF
VOLUNTARY DISMISSAL; G:\docs\prose attys\Screening\DMP\2012\Grindling 12-361 lek (vol.
dsml, recon, clarify).wpd

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