(PC) Johnson v. Lozano ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. JOHNSON, No. 2:19-cv-1128 MCE DB P 12 Plaintiff, 13 v. ORDER 14 JARED LOZANO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner who was proceeding pro se and in forma pauperis with a civil 18 rights action under 42 U.S.C. § 1983. On June 19, 2019, filed a complaint alleging defendants 19 violated his rights under the Eighth and Fourteenth Amendments. (ECF No. 1.) Upon screening, 20 the court found plaintiff failed to state a cognizable claim for relief under § 1983, gave plaintiff 21 leave to file an amended complaint, granted plaintiff’s motion to proceed in forma pauperis, and 22 ordered the prison to collect payments from plaintiff’s trust account. (ECF Nos. 10, 11.) 23 Plaintiff was given the opportunity to file an amended complaint and did so on October 24 28, 2020. (ECF No. 15.) The court screened this First Amended Complaint and found service 25 appropriate. (ECF No. 20.) Following the issuance of summons to defendants, plaintiff filed 26 notice of voluntary dismissal this action. (ECF No. 24.) Accordingly, the case was dismissed 27 pursuant to Rule 41(a)(1)(B) of the Federal Rules of Civil Procedure. (ECF No. 28.) 28 //// 1 On August 11, 2022, plaintiff filed a motion to strike filing fee. (ECF No. 29.) Plaintiff 2 || requests the filing fee as “people with physical disabilities are exempt from the filing fee under 3 | the PLRA pursuant to the American Disability Act.” (Id. at 1.) 4 The Americans with Disabilities Act permits a party that prevails on a claim from 5 || recovering certain fees and costs in the court’s discretion. See Armstrong v. Davis, 318 F.3d 965, 6 | 974 (9th Cir. 2003); Kraus v. Rattu, 2:18-cv-0627 MCE DB, 2020 WL 526105, *6 (E.D. Cal. 7 | Feb. 3, 2020) (“a party that prevails on claims brought under the ADA may recover reasonable 8 | attorney's fees and costs in the court's discretion”). However, plaintiff did not prevail in this 9 | action as it was voluntarily dismissed by the plaintiff. (See ECF Nos. 24, 28.) As such, this does 10 | not apply to plaintiff and his filing fee. Plaintiff is advised that when he files a federal civil rights 11 || action, he remains liable for full payment of the filing fee regardless of the outcome of the action. 12 | See 28 U.S.C. § 1915(b)(1)&(2); Antonetti v. Foster, No. 3:14-cv-495-JAD-VPC, at *3 (D. Nev. Oct. 22, 2015) (“Plaintiff will . . . be required to make monthly payments toward the full $350 14 | filing fee when he has funds available, even though this case is being dismissed.”); Turner v. San 15 | Diego County, No. 14-cv-1965 LAB (WVG), 2014 WL 5800595, at *1 (S.D. Cal. Nov. 7, 2014) 16 | (same); Mercier vy. FBI, No. CV07-281-S-EJL, 2008 WL 360843, at *2 (D. Id. Feb. 8, 2008) 17 | (same). 18 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion (ECF No. 29) is denied. 19 | Dated: September 1, 2022 21 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 DBE Prisoner Inbox/Civil Rights/R/john1 128. strkfee 28