(PC) Foster v. Coleman ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONAS B. FOSTER, Case No. 1:24-cv-00813-KES-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S REQUEST FOR VOLUNTARY 13 v. DISMISSAL AND DENYING REQUEST TO WAIVE FILING FEE 14 RICHARD COLEMAN, (Doc. 12) 15 Defendant. 16 17 Plaintiff Jonas B. Foster (“Plaintiff”) is a jail inmate proceeding pro se and in forma 18 pauperis in the instant action against Defendant Richard Coleman. (Docs. 1, 9.) On August 16, 19 2024, the undersigned issued Findings and Recommendations to dismiss this action without 20 prejudice for lack of jurisdiction. (Doc. 11.) The Findings and Recommendations remain 21 pending. 22 On August 16, 2024, Plaintiff filed the instant request asking the Court to “dismiss his 23 case due to lack of jurisdiction.” (Doc. 12 at 1.) Plaintiff also requests that the Court waive the 24 filing fee based on his belief that this was the proper court for filing. (Id.) 25 The Court construes the request that the action be dismissed as a request for voluntary 26 dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Under Rule 41(a)(1)(A)(i), 27 “a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant 28 of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing 1 Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “[A] dismissal 2 under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though 3 no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction 4 to do anything about it.” Id. at 1078. No defendant has been served in this action and no 5 defendant has filed an answer or motion for summary judgment. 6 Accordingly, this action is terminated by operation of law without further order from the 7 Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is DIRECTED to terminate all 8 pending matters and deadlines and CLOSE THIS CASE. 9 Insofar as Plaintiff seeks relief from the filing fee in this action, his request will be denied. 10 Earlier in this case, the Court granted Plaintiff’s motion to proceed in forma pauperis. (Doc. 7.) 11 It was explained to Plaintiff that he was obligated to pay the statutory filing fee of $350.00 for 12 this action, in monthly payments of twenty percent of the preceding month’s income credited to 13 his trust account. (Id. at 1.) The Warden/Sheriff of the Bob Wiley Detention Facility or his/her 14 designee was ordered to send to the Clerk of the court payments from Plaintiff’s account each 15 time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full. (Id. at 16 2 (citing 28 U.S. § 1915(b)(2))). The entire $350.00 filing fee is statutorily required, and must be 17 collected from Plaintiff’s institutional account regardless of the outcome of this action and even if 18 Plaintiff elects to dismiss this action. See, e.g., Myers v. Pulido, No. 1:16-cv-00638-SAB-PC, 19 2016 WL 6723937, at *1 (E.D. Cal. Nov. 14, 2016). As a result, Plaintiff’s request to be relieved 20 of the obligation to pay this fee is DENIED. 21 IT IS SO ORDERED. 22 23 Dated: September 4, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28