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Vandenburgh v. Marsh

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 6, 2009

MARK J. VANDENBURGH, PLAINTIFF,
v.
LIEUTENANT MARSH, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Raymond C. Fisher, United States Circuit Judge

ORDER GRANTING MOTION TO VOLUNTARILY DISMISS AND DENYING REQUEST TO WAIVE REMAINDER OF THE FILING FEE

Plaintiff Mark J. Vandenburgh is a state prisoner proceeding pro se and in forma pauperis under 28 U.S.C. § 1915. On August 3, 2009, plaintiff filed a motion to voluntarily dismiss the complaint without prejudice under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 41(a). Plaintiff also requested that the Court waive the remainder of the filing fee (Doc. #22). Plaintiff's motion to dismiss will be granted and this action will be dismissed without prejudice, but plaintiff's request to waive the remainder of the filing fee will be denied.

Under Fed. R. Civ. P. 41(a), a plaintiff may dismiss an action without order of the Court by filing a notice of dismissal at any time before service of an answer or motion for summary judgment. No answer or motion for summary judgment has been served in this case. Plaintiff's right to voluntarily dismiss under these circumstances is therefore absolute. See Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999). Voluntary dismissal, however, does not alleviate the responsibility to pay the filing fee. All prisoners who bring a civil action "shall be required to pay the full amount of the filing fee." 28 U.S.C. § 1915(b)(1); see Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to voluntarily dismiss the complaint without prejudice is GRANTED; and

2. Plaintiff's request that the Court waive the remainder of the filing fee is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court must terminate this action.

20090806

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