Lapointe v. Oliver et al

Filing 14

ORDER Denying Request for Return of Filing Fee and Granting Extension to File Third and Final Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 11/12/14.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02138-BNB
RENÉ JACQUES LAPOINTE,
Plaintiff,
v.
J. OLIVER, Warden,
PLILIAR, Assistant Warden, and
DR. ALLRED, Primary Care Provider,
Defendants.

ORDER DENYING REQUEST FOR RETURN OF FILING FEE AND
GRANTING EXTENSION TO FILE THIRD AND FINAL AMENDED COMPLAINT

This matter is before the Court on the letter that Plaintiff, René Jacques
Lapointe, filed pro se on November 10, 2014 (ECF No. 13), asking to withdraw his
second amended Prisoner Complaint (ECF No. 11) and for the return of the $400.00
filing fee he paid in this action.
Mr. Lapointe is a prisoner in the custody of the Federal Bureau of Prisons who
currently is incarcerated at the United States Penitentiary, High Security, in Florence,
Colorado. Mr. Lapointe initiated this action by filing pro se a Prisoner Complaint (ECF
No. 1) for injunctive relief pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
On August 1, 2014, the Court entered an order (ECF No. 5) directing Mr.
Lapointe to file an amended Prisoner Complaint on the Court-approved Prisoner
Complaint form that complied with the pleading requirements of Rule 8 of the Federal

Rules of Civil Procedure and alleged the personal participation of each named
Defendant. On August 12, 2014, Mr. Lapointe filed an amended Prisoner Complaint
that was not on the Court-approved form. On August 26, 2014, the Court entered a
minute order (ECF No. 8) noting that the August 12 amended Prisoner Complaint failed
to comply with the August 1 order, directing that the clerk of the Court mail to Mr.
Lapointe the Court-approved form for filing a Prisoner Complaint, and allowing Plaintiff
thirty days in which to file an amended Prisoner Complaint as directed in the August 1
order. On September 25, 2014, Mr. Lapointe filed a second amended Prisoner
Complaint (ECF No. 11).
On October 9, 2014, the Court entered an order (ECF No. 12) directing Mr.
Lapointe to file within thirty days a third and final amended Prisoner Complaint on the
Court-approved form that alleged the personal participation of each named Defendant
and complied with the Fed. R. Civ. P. 8 pleading requirements. On November 10,
2014, instead of filing a third and final amended Prisoner Complaint as directed, Mr.
Lapointe filed the letter asking to withdraw his second amended Prisoner Complaint
(ECF No. 11) and for the return of the $400.00 filing fee he paid in this action.
The request for the return of the $400.00 filing fee Mr. Lapointe paid will be
denied. Mr. Lapointe fails to cite to any authority, and the Court is not aware of any,
that allows the return of a paid filing fee in a civil action. Even if the Court had granted
Mr. Lapointe leave to proceed pursuant to 28 U.S.C. § 1915 he still would owe the
$400.00 filing fee in full. Section 1915(b) states that “if a prisoner brings a civil action . .
. in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.”
28 U.S.C. § 1915(b)(1). Furthermore, under § 1915, payment of the filing fee is not
2

conditioned on whether the litigant opts to continue prosecuting an action.
Normally, because Mr. Lapointe is not represented by an attorney, the Court
would construe the November 10 letter liberally as a notice of voluntary dismissal. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure,
Mr. Lapointe “may dismiss an action without a court order by filing: (i) a notice of
dismissal before the opposing party serves either an answer or a motion for summary
judgment.” No response has been filed by Defendants in this action. Pursuant to Fed.
R. Civ. P. 41(a)(1)(B), the dismissal is without prejudice, unless otherwise stated. A
voluntary dismissal pursuant to Rule 41(a)(1)(A) is effective immediately upon the filing
of a written notice of dismissal, and no subsequent court order is necessary. See J.
Moore, Moore’s Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v.
Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). The notice closes the file. See Hyde
Constr. Co., 388 F.2d at 507.
However, although the Court will deny Mr. Lapointe’s request to return the
$400.00 filing fee he paid to pursue this action, he will be allowed fifteen days from the
date of this order in which to file the third and final amended Prisoner Complaint as
directed, or notify the Court in writing that he wishes to dismiss the instant action
voluntarily. Failure to do so within the time allowed will result in the dismissal of the
instant action.
Accordingly, it is
ORDERED that the request of November 10, 2014 (ECF No. 13), by Plaintiff,

3

René Jacques Lapointe, for the return of the $400.00 filing fee paid in this action is
denied. It is
FURTHER ORDERED that Plaintiff’s request in the November 10 letter to
withdraw the second amended Prisoner Complaint (ECF No. 11) is denied at this time.
It is
FURTHER ORDERED that Plaintiff will be allowed fifteen (15) days from the
date of this order in which to file a third and final amended Prisoner Complaint that
complies with the order of October 9, 2014 (ECF No. 12), or notify the Court in writing
that he wishes to dismiss the instant action voluntarily. It is
FURTHER ORDERED that the clerk of the Court mail to Plaintiff, together with a
copy of this order, a copy of the Court-approved form for filing a Prisoner Complaint,
along with the applicable instructions, to be used in subm itting the third and final
amended Prisoner Complaint. It is
FURTHER ORDERED that Plaintiff’s failure within the time allowed to file a third
and final amended Prisoner Complaint as directed or notify the Court in writing that he
wishes to dismiss this action voluntarily will result in the dismissal of the instant action.
The dismissal will be without prejudice.
DATED November 12, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
GORDON P. GALLAGHER
United States Magistrate Judge

4