Colasurdo v. Butler et al

Filing 6

ORDER DISMISSING CASE, granting 4 MOTION to Dismiss filed by John Colasurdo. This dismissal shall not count as one of Plaintiff's allotted strikes under 28 U.S.C. § 1915(g). Signed by Judge Nancy J. Rosenstengel on 8/25/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN COLASURDO,
#K88438,

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Plaintiff,
vs.
KIMBERLY BUTLER,
SGT. ZIEGLER,
and C/O WALTERS,
Defendants.

Case No. 15-cv-00924-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff John Colasurdo is currently incarcerated at Menard Correctional Center.
On August 19, 2015, he filed this action pursuant to 42 U.S.C. § 1983 (Doc. 1). In the complaint,
Plaintiff alleges that several Menard officials deprived him of a protected liberty interest without
due process of law under the Fourteenth Amendment when they placed him in segregation based
on allegedly false disciplinary charges. The complaint currently awaits preliminary review
pursuant to 28 U.S.C. § 1915A. Plaintiff also filed a motion seeking leave to proceed in forma
pauperis (Doc. 2), and that motion is pending.
On August 24, 2015, Plaintiff filed a motion seeking voluntary dismissal of this action
(Doc. 4). In the motion, he explains that this lawsuit was mistakenly filed. He presented the
complaint, which was undated and in draft form, to the prison’s trust fund officer at the time he
requested his trust fund account statement. Rather than provide a certified copy of the statement
to Plaintiff, the trust fund officer sent the complaint to the law library. The librarian transmitted
the complaint to the Court for filing, and it was filed prematurely. Plaintiff asks the Court to

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grant his motion for voluntary dismissal of this case and release him from his obligation to pay
the filing fee for this action.
Plaintiff’s obligation to pay the filing fee was incurred at the time the action was filed,
and a filing fee of $350.00 1 normally remains due and payable whether or not this action is
voluntarily dismissed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998). In light of the circumstances described in the motion and the timely request to
voluntarily dismiss this action, however, the Court will not assess a filing fee.
IT IS HEREBY ORDERED that Plaintiff’s motion for voluntary dismissal (Doc. 4) is
GRANTED, and this action is DISMISSED without prejudice. See FED. R. CIV. P.
41(a)(1)(A)(i). This dismissal shall not count as one of Plaintiff’s allotted “strikes” under
28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that Plaintiff’s motion seeking leave to proceed in forma
pauperis (Doc. 2) is DENIED as moot, and no filing fee is assessed for this case.
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: August 25, 2015

NANCY J. ROSENSTENGEL
United States District Judge

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If a prisoner is not allowed to proceed in forma pauperis, an additional administrative fee of $50.00 is
assessed at the time of filing, resulting in a total filing and docketing fee of $400.00.

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