(PC) Watkins v. Tuolumne Co Sheriff

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND C. WATKINS, No. 1:23-cv-01430-JLT-SAB (PC) 12 Plaintiff, ORDER TERMINATING ACTION PURSUANT TO PLAINTIFF’S MOTION 13 v. FOR VOLUNTARY DISMISSAL AND DIRECTING CLERK OF COURT TO NOT 14 TUOLUMNE CO. SHERIFF, et al., COLLECT ANY FILING FEE FOR THIS CASE 15 Defendants. (ECF No. 14) 16

17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. 19 Currently before the Court is Plaintiff filed a motion to voluntarily dismiss this case and 20 return any collection of the filing fee for this action, filed December 6, 2023. (ECF No. 14.) 21 On October 4, 2023, the Court granted Plaintiff’s application to proceed in forma 22 pauperis. (ECF No. 4.) However, after further review of the record, the Court found that Plaintiff 23 has suffered three or more strikes under 28 U.S.C. § 1915(g) and is barred from proceeding in 24 forma pauperis unless he demonstrates he was under imminent danger of serious physical injury 25 at the time the complaint was filed. Therefore, on October 17, 2023, the Court vacated the order 26 granting Plaintiff’s application to proceed in forma pauperis and issued Findings and 27 Recommendations recommending Plaintiff pay the $402.00 filing fee for this action because he 28 1 suffered three or more strikes under § 1915(g). (ECF No. 6.) The Findings and 2 Recommendations were adopted in full on November 9, 2023, and Plaintiff was directed to pay 3 the $402.00 filing fee within thirty days. (ECF No. 12.) 4 In lieu of paying the filing fee, Plaintiff filed a motion to voluntary dismiss the action and 5 return the collection of any filing fee for this action. (ECF No. 14.) 6 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 7 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 8 Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and 9 citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is 10 required, the parties are left as though no action had been brought, the defendant can't complain, 11 and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has 12 been served in this action and no defendant has filed an answer or motion for summary judgment. 13 Accordingly, this action is terminated, without prejudice, by operation of law without further 14 order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). 15 With regard to Plaintiff’s request for the return of any filing fee, Plaintiff is advised that a 16 review of the record reflects that no filing fee has been collected in this case and no payment will 17 be collected since Plaintiff’s application to proceed in forma pauperis has been vacated. See 18 Meyers v. Birdsong, ––– F.4th ––––, 2023 WL 6614357, at *3 (9th Cir. 2023) (holding that “§ 19 1915(b) neither permits nor requires the collection of fees” from a prisoner who seeks in forma 20 pauperis status but whose request is denied pursuant to 28 U.S.C. § 1915(g)); Smith v. Dist. of 21 Columbia, 182 F.3d 25, 29–30 (D.C. Cir. 1999) (holding that prisoner whose request for in forma 22 pauperis status was denied pursuant to 28 U.S.C. § 1915(g) was not required to pay filing fee out 23 of prison account). 24 Based on the foregoing, it is HEREBY ORDERED that: 25 1. This action is terminated by operation by law pursuant to Plaintiff’s motion for 26 voluntarily dismissal; and 27 /// 28 /// 1 2. Pursuant to the Court’s October 17, 2023, order vacating the grant of Plaintiffs 2 | application to proceed in forma pauperis, the Court will not collect any filing fee for this action. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ December 7, 2023

‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28