Thelen v. Cross et al

Filing 8

ORDER DISMISSING CASE WITHOUT PREJUDICE, granting 6 MOTION to Dismiss filed by Patrick Thelen. Plaintiff is INSTRUCTED that, although he has dismissed his claims, he must still pay the filing fee for this case. Signed by Judge Michael J. Reagan on 7/21/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATRICK THELEN, # 16842-039,
Plaintiff,
vs.
JAMES CROSS, JR.,
CHARLES E. SAMUELS, JR.,
and ERIC HOLDER,
Defendants.

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Case No. 14-cv-760-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff is currently incarcerated at the Federal Correctional Institution at
Greenville. He brought this pro se civil rights action on July 2, 2014, pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971). On July 18, 2014, Plaintiff moved this Court for
voluntary dismissal of the action (Doc. 6), because he was notified that he had not exhausted all
of the claims he sought to bring in this matter. Plaintiff prayed in the alternative for a stay and
abeyance of this case, but affirmed that he would prefer a voluntary dismissal. The Court agrees
that dismissal is appropriate, as the suit is premature if Plaintiff’s claims have not yet been
exhausted. See 42 U.S.C. § 1997e(a).
Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, voluntary
withdrawal of his claim is Plaintiff’s right. Accordingly, this action is DISMISSED
WITHOUT PREJUDICE. The pending motion for service of process at government expense
(Doc. 3) is DENIED as moot.

Plaintiff is INSTRUCTED that, although he has dismissed his claims, he must
still pay the filing fee for this case. See 28 U.S.C. § 1915(b)(1), (e)(2); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998) (A prisoner incurs the obligation to pay the filing fee for a lawsuit
when the suit is filed, and the obligation continues regardless of later developments in the suit,
such as dismissal of the suit or denial of leave to proceed IFP.). Plaintiff’s motion for leave to
proceed in forma pauperis (IFP) (Doc. 2) shall be addressed by separate order.
IT IS SO ORDERED.
DATED: July 21, 2014

s/ MICHAEL J. REAGAN
DISTRICT JUDGE