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Holmes v. Scribner

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 28, 2010

ERIC HOLMES, PLAINTIFF,
v.
A. K. SCRIBNER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTION TO WAIVE FILING FEE UPON DISMISSAL OF ACTION

(Doc. 39.)

ORDER FOR PLAINTIFF TO NOTIFY COURT WHETHER HE NOW INTENDS TO VOLUNTARILY DISMISS THIS ACTION THIRTY DAY DEADLINE

Plaintiff Eric Holmes ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on June 24, 2005. (Doc. 1.) On January 25, 2010, plaintiff filed a motion to dismiss this action without prejudice and with waiver of payment of the filing fee. (Doc. 39.)

The in forma pauperis statute allows prisoners to proceed without prepayment of the filing fee. 28 U.S.C. § 1915(b)(1). Prisoners are still required to pay the filing fee in full, in forma pauperis status not withstanding, and if plaintiff has funds available in his trust account, deductions will be made in accordance with the court's order of August 25, 2005, until the $250.00 filing fee is paid in full.*fn1 Id. Plaintiff was served with the court orders notifying him of the above on August 25, 2005. (Docs. 4, 5.) Because plaintiff owes the filing fee for the filing of this action, and this action was filed on June 24, 2005, there is no basis for waiver of the filing fee upon dismissal of this action. Therefore, plaintiff is advised that if he voluntarily dismisses this action, the court shall continue collection of the filing fee until it is paid in full.

Plaintiff shall be required to inform the court of his intention regarding the dismissal of this action. Plaintiff must file a written response to this order, within thirty days from the date of service of this order, informing the court whether or not he wishes to voluntarily dismiss this action in its entirety.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to waive the filing fee upon dismissal of this action is DENIED;

2. Plaintiff is required to file a written response to this order, within thirty days from the date of service of this order, informing the court whether or not he wishes to voluntarily dismiss this action in its entirety; and

3. Plaintiff's failure to comply with this order shall result in a recommendation that this action be dismissed.

IT IS SO ORDERED.


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