Draffen v. Santos

Filing 33

ORDER DENYING 30 Motion to Appoint Counsel; TAKING UNDER ADVISEMENT 30 Motion to Dismiss; DENYING 30 Motion Consolidate Filing Fees; and, GRANTING 31 Motion for Joinder. Signed by Magistrate Judge Donald G. Wilkerson on 6/26/2014. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH LESLIE DRAFFEN,
Plaintiff,
v.
VENERIO SANTOS,
Defendant.

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Case No. 3:13-cv-169-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Appoint Counsel, or Allow Voluntary
Dismissal, and Consolidate Filing Fees, filed by Plaintiff, Joseph Draffen, on May 15, 2014 (Doc.
30), and the Motion for Joinder in Plaintiff’s Motion for Voluntary Dismissal, filed by Defendant,
Venerio Santos, on May 15, 2014 (Doc. 31). For the reasons stated below, Plaintiff’s Motion to
Appoint Counsel or Allow Voluntarily Dismissal, and Consolidate Filing Fees is TAKEN
UNDER ADVISEMENT IN PART and DENIED IN PART, and Defendant’s Motion for
Joinder is GRANTED.
Plaintiff’s Motion to Appoint Counsel or Allow Voluntary Dismissal (Doc. 30)
In this Motion, Plaintiff is requesting this Court appoint him counsel, or, in the alternative,
grant voluntary dismissal of his claim. Plaintiff has previously filed a similar motion in this
matter (Doc. 21) on December 26, 2013, which was denied, without prejudice (Doc. 23). In its
previous Order, the Court determined that Plaintiff had never filed a motion to appoint counsel in
this case. Rather, Plaintiff had requested an appointment of counsel, which was denied, in
another case that he filed, 11-cv-826-PMF. As such, the Court never had the opportunity to
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examine factors to determine if Plaintiff was competent to litigate this matter.
With respect to Plaintiff’s Motion currently under consideration, Plaintiff again states that
he has made a reasonable attempt to obtain counsel, and references his Motion to Appoint Counsel
filed on September 14, 2011.

Again, Plaintiff appears to have confused this case with

11-cv-826-PMF, which has since been voluntarily dismissed pursuant to this same motion.
Plaintiff has not filed a Motion to Appoint Counsel that would allow this Court to examine factors
to determine Plaintiff’s competency to litigate this matter. As such, Plaintiff’s Motion to Appoint
Counsel is DENIED.
Plaintiff’s Motion asks the Court to grant voluntary dismissal of his claim if he is not
appointed counsel in this case. As the Court is denying Plaintiff’s Motion to Appoint Counsel,
the Court construes this as a Motion for Voluntary Dismissal. Plaintiff is ADVISED that he has
thirty (30) days from the date of this Order to object to dismissal of his lawsuit. As such,
Plaintiff’s request for voluntary dismissal is TAKEN UNDER ADVISEMENT. Absent an
objection by Plaintiff in the time prescribed, the Court will recommend dismissal of this case.
Plaintiff’s Motion to Consolidate Filing Fees (Doc. 30)
Plaintiff requests that this Court consolidate his filing fees for this case, and case number
11-cv-826-PMF. The Seventh Circuit has instructed that “the fees for filing the complaint and
appeal cumulate. Otherwise a prisoner could file multiple suits for the price of one …” Newlin v.
Helman, 123 F.3d 429, 436 (7th Cir. 1997), overruled in part on other grounds by Lee v. Clinton,
209 F.3d 1025 (7th Cir. 2000), and Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000). A prisoner
who files one suit must remit 20% of his monthly income to the Clerk of the Court until his fees
have been paid; a prisoner who files two suits must remit 40%; and so on. Newlin, 123 F.3d at
436. In this instance, Plaintiff’s initial Complaint was severed into two separate lawsuits, and, as
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such, he was assessed two separate filing fees. Plaintiff was directed to notify the Court if he did
not wish to proceed with the instant lawsuit in order to avoid incurring an additional filing fee.
Plaintiff failed to make any such notification and this case moved forward. As such, the filing
fees Plaintiff complains of have been assessed and collected in accordance with the applicable
statute, 28 U.S.C. § 1915(b)(2). Accordingly, Plaintiff’s request to consolidate his filing fees is
DENIED.
Defendant’s Motion to Join Plaintiff’s Motion to Voluntarily Dismiss his Actions (Doc. 31)
Defendant Venerio Santos moves to join Plaintiff’s Motion to Voluntarily Dismiss this
action. Defendant Santos indicates he has no objection to Plaintiff’s motion and urges the Court
to dismiss this matter as requested by Plaintiff. Defendant’s Motion is GRANTED.
IT IS SO ORDERED.
DATED: June 26, 2014
DONALD G. WILKERSON
United States Magistrate Judge

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