United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge.
District Court referred this action, filed pursuant to 42
U.S.C. § 1983, to United States Magistrate Judge David
W. Christel. On November 1, 2017, Plaintiff Ray Charles
Harris filed a Motion for Extension of Time. Dkt. 39. He
subsequently filed his Motion for Voluntary Dismissal and
Waiver of the Filing Fee (“Motion”). Dkt. 41.
Defendant Balderama filed his Response stating he has no
opinion and leaving the decision to dismiss to the
Court's discretion. Dkt. 42.
review of the Motion and Response, the undersigned recommends
the District Court grant Plaintiff's Motion and dismiss
his cause of action. However, the Court recommends his
request to waive the filing fee be denied. The Court further
recommends Plaintiff's Motion for Extension of Time (Dkt.
39) be denied as moot.
filed this action in December of 2016. Dkt. 1. Defendants
filed two Motions to Dismiss (Dkts. 10, 14) which the Court
granted (Dkt. 22). However, the Court provided Plaintiff with
leave to file an amended complaint. Id. Plaintiff
filed his Amended Complaint in June of 2017. Dkt. 23.
Defendants again filed two Motions to Dismiss (Dkts. 26, 27)
which the Court granted, again providing Plaintiff with leave
to file an amended complaint (Dkt. 38). Plaintiff then filed
a Motion for Extension of Time, requesting the Court give him
until December 20, 2017 to file another amended complaint.
Dkt. 39. While that motion was still pending, Plaintiff filed
his current Motion, asking that he be allowed to voluntarily
dismiss his action. Dkt. 41. Defendant Balderama filed a
response, stating he takes no position on whether the Court
should grant the Motion. Dkt. 42. The other named Defendants
did not file a response.
Rule of Civil Procedure 41 sets forth the circumstances under
which an action may be dismissed. Under Rule 41(a)(1), an
action may be voluntarily dismissed without prejudice by the
plaintiff if the plaintiff files a notice of dismissal before
the defendant files an answer or summary judgment motion and
the plaintiff has not previously dismissed an action
“based on or including the same claim.”
Fed.R.Civ.P. 41(a)(1); Wilson v. City of San Jose,
111 F.3d 688, 692 (9th Cir. 1997). Once the defendant has
filed an answer or motion for summary judgment, the action
may only be dismissed by stipulation of dismissal signed by
all parties who have appeared or “by court order, on
terms that the court considers proper.” Fed.R.Civ.P.
dismissal is appropriate. Defendants have not filed an answer
or a motion for summary judgment. Rather, Defendants filed
several Motions to Dismiss (Dkts. 10, 14, 26, 27) which do
not preclude a voluntary dismissal by Plaintiff. See
American Soccer Co., Inc. v. Score First Enterprises,
187 F.3d 1108, 1111 (9th Cir. 1999). Further, Plaintiff has
not previously dismissed an action based on the same claim.
Finally, Defendant Balderama does not oppose Plaintiff's
Motion and the other Defendants have not filed responses to
the Motion. Voluntary dismissal is therefore appropriate. The
Court recommends Plaintiff's action be dismissed without
the Court recommends Plaintiff's request to waive his
filing fee be denied. 28 U.S.C. § 1915 does not provide
any authority or mechanism for the Court to waive the payment
of a plaintiff's filing fee or to return the filing fee
after dismissal of an action. “Filing fees are part of
the costs of litigation.” Lucien v. DeTella,
141 F.3d 773, 775 (7th Cir.1998). Prisoner cases are no
exception. The Prison Litigation Reform Act
(“PLRA”) has no provision for return of fees
partially paid or for cancellation of the remaining fee.
See Goins v. Decaro, 241 F.3d 260, 261-62 (2d Cir.
2001) (inmates who proceeded pro se and in forma
pauperis were not entitled to refund of appellate fees
or to cancellation of indebtedness for unpaid appellate fees
after they withdrew their appeals). In fact, “[a]
congressional objective in enacting the PLRA was to
‘mak[e] all prisoners seeking to bring lawsuits or
appeals feel the deterrent effect created by liability for
filing fees.'” Id. at 261 (quoting
Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996).
Having filed this case, Plaintiff and the Court are both
statutorily limited by the strictures of 28 U.S.C. §
1915. Accordingly, to the extent Plaintiff is requesting the
Court waive his filing fee, the Court recommends his Motion
because the Court recommends Plaintiff's action be
dismissed without prejudice, the Court further recommends
Plaintiff's Motion for Extension of Time (Dkt. 39) be
foregoing reasons, the Court recommends Plaintiff's
action be dismissed without prejudice. The Court further
recommends that Plaintiff's request to waive his filing
fee and Plaintiff's Motion for Extension of Time be
denied. Pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days
from service of this Report to file written objections.
See also Fed. R. Civ. P. 6. Failure to file
objections will result in a waiver of those objections for
purposes of de novo review by the district judge.
See 28 U.S.C. § 636(b)(1)(C). ...