Grider v. Thomas et al

Filing 11

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 6/5/13. (SAC )

FILED
2013 Jun-05 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS JAMES GRIDER,
Plaintiff,
v.
KIM TOBIAS THOMAS, et. al.,
Defendants.

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2:12-cv-02674-WMA-JEO

MEMORANDUM OPINION
The magistrate judge filed a report and recommendation on May 6, 2013, recommending that
this action filed pursuant to 42 U.S.C. § 1983 be dismissed under 28 U.S.C. § 1915A(b) for failing
to state a claim upon which relief may be granted, or seeking monetary relief from defendants who
are immune. The plaintiff did not file objections to the report and recommendation, but on May 29,
2013, filed a motion for voluntary dismissal accompanied by a request that the payments of the filing
fee no longer be withdrawn from his account. (Doc. 10).
Although the plaintiff initially styled his pleading as a Petition for Writ of Habeas Corpus,
because the claim raised and relief sought therein did not concern the legality of the plaintiff’s
custody, or the execution of the sentence, the plaintiff was advised that the petition would be
construed as a §1983 action, which required a filing fee of $350.00. The plaintiff was informed that
to proceed with this action, he must either file a new application to proceed in forma pauperis
(“IFP”) or pay the filing fee of $350.00. The plaintiff filed a new IFP application, and was
subsequently advised that his obligation to pay the filing fee in full would remain in full force and
effect, notwithstanding any dismissal or termination of the lawsuit, until the full filing fee of $350.00
has been paid. The payment of the remainder of the filing fee can not be waived by the dismissal

of this action, and the rational of 28 U.S.C. § 1915(a) and (g) would not be served by granting the
plaintiff’s motion for voluntary dismissal. See, Wilson v. Freesemann, 2007 WL 2083827 (S.D. Ga.
2007) (holding that 28 U.S.C. § 1915(a) prevents [a prisoner] from avoiding a 28 U.S.C. § 1915(g)
‘strike’ merely by exploiting Rule 41(a) in the face of an adverse Report and Recommendation).
Thus, having carefully reviewed and considered de novo all the materials in the court file,
including the report and recommendation, the Court is of the opinion that the magistrate judge's
report is due to be and is hereby ADOPTED and the recommendation is ACCEPTED. Further, the
plaintiff’s motion for voluntary dismissal (doc. 10) is due to be DENIED. Accordingly, the
complaint is due to be dismissed pursuant to 28 U.S.C. § 1915A(b) for failing to state a claim upon
which relief may be granted, or seeking monetary relief from defendants who are immune. A Final
Judgment will be entered.
DATED this 5th day of June, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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