Wright v. Arias et al
ORDER - Plaintiff's motion to void filing fee (ECF No. 17 ) is DENIED. Signed by Magistrate Judge William G. Cobb on 11/9/2017. (Copies have been distributed pursuant to the NEF - DRM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
GONZALAS ARIAS, et al.,
Plaintiff has filed a motion asking the court to void the filing fee order entered in this
case, and to order the prison to reimburse him funds deducted from his account and paid toward
the filing fee. (ECF No. 17.) Plaintiff reasons that he filed this case with an application to
proceed in forma pauperis (IFP), and when the court granted the application which required him
to still pay the filing fee over time and dismissed many of his claims on screening, he decided to
voluntarily dismiss the action. As a result, he believes the filing fee should be reimbursed.
Plaintiff, a pro se, inmate litigant initiated this action with an IFP application and
proposed complaint. (ECF Nos. 1, 1-1.) On March 10, 2017, the court temporarily deferred the
matter of the filing fee, and issued its screening order pursuant to 28 U.S.C. ¶ 1915A. (ECF No.
4.) The court dismissed many of the allegations of the complaint with prejudice as frivolous,
allowed only the First Amendment mail claim to proceed against Ivie, Burleigh, Watson, Kelly,
Sharp, and Escomillo, and dismissed the remaining claims, but with leave to amend within thirty
days. (Id.) Thirty days passed, and Plaintiff failed to file an amended complaint. Therefore, the
court ordered that the action would proceed only with respect to the First Amendment mail
claim. (ECF No. 6.) The court stayed the action for ninety days to allow the parties an
opportunity to settle their dispute before requiring the $350 filing fee to be paid. (Id.) An Early
Mediation Conference was held on July 18, 2017, but was unsuccessful. (ECF No. 12.)
On July 24, 2017, the court entered an order noting that Plaintiff could still file an
amended complaint in accordance with Federal Rule of Civil Procedure 15, if he wished, and
granted the IFP application, noting that pursuant to 28 U.S.C. § 1915(b)(2), the full filing fee still
had to be paid, even if the action was dismissed, and that the Nevada Department of Corrections
was required to pay the court twenty percent of the preceding month’s deposits in his account, in
months when the account exceeded $10, until the full $350 filing fee was paid.. (ECF No. 14.)
On July 31, 2017, Plaintiff moved for dismissal of his action. (ECF No. 15.) The court
granted the motion, noting that Federal Rule of Civil Procedure 41(a)(1)(i) allows for voluntary
dismissal by a plaintiff before the opposing party serves its responsive pleading or motion.
(ECF No. 16.)
Plaintiff was cautioned that he was responsible for the full $350 filing fee, to be paid over
time, even if the action were dismissed. Plaintiff cannot now seek a refund of funds paid toward
the filing fee simply because he decided to stop pursuing the action after he was unsuccessful
with respect to the majority of the claims initially asserted. To adopt such a policy is contrary to
the statute, and would create no disincentive for the filing of frivolous or meritless actions by
Accordingly, Plaintiff’s motion (ECF No. 17) is DENIED.
IT IS SO ORDERED.
DATED: November 9, 2017.
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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