West v. Unknown Parties

Filing 8

ORDER DISMISSING CASE: The action is hereby DISMISSED without prejudice. The Court will not assess a strike. However, Plaintiff's obligation to pay the filing fee for the action was incurred at the time the original action was filed, thus the filing fee of $350.00 remains due and payable despite Plaintiff's request for voluntary dismissal. Signed by Judge Staci M. Yandle on 11/9/2016. (tjk)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS KENTES WEST, #K-82893, Plaintiff, vs. UNKNOWN PARTIES, Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-00986-SMY MEMORANDUM AND ORDER YANDLE, District Judge: On August 29, 2016, this case was severed from another civil rights action that Plaintiff Kentes West filed pursuant to 42 U.S.C. § 1983 against thirty-one defendants who allegedly violated his constitutional rights at Menard Correctional Center (“Menard”) in 2015 and 2016. See West v. Butler, et al., No. 16-cv-414-SMY (S.D. Ill. 2016) (“original case”). The instant case focuses on a single access-to-courts claim (“Count 13,” original case) against unidentified parties (“Unknown Defendants”) (Doc. 2, p. 25). In connection with this claim, Plaintiff requested monetary relief (id.). Count 13 did not survive preliminary review under 28 U.S.C. § 1915A, and this Court dismissed it without prejudice on October 11, 2016 (see Doc. 6). However, Plaintiff was granted leave to file a First Amended Complaint on or before November 8, 2016, if he wished to re-plead his claims against the Unknown Defendants (id.). Plaintiff was warned that failure to file a First Amended Complaint would result in dismissal of the action and the assessment of a strike (id.). On October 31, 2016, Plaintiff filed a Motion to Voluntarily Dismiss this action (Doc. 7). He did not file a First Amended Complaint and, in fact, expressed his intention not to do so. Page 1 of 2 Seeking voluntary dismissal of the action at this early stage is Plaintiff’s right. See FED. R. CIV. P. 41(a)(1)(A)(i). Accordingly, Plaintiff’s Motion to Voluntarily Dismiss this case is GRANTED. The action is hereby DISMISSED without prejudice. The Court will not assess a strike. However, Plaintiff’s obligation to pay the filing fee for the action was incurred at the time the original action was filed, thus the filing fee of $350.00 remains due and payable despite Plaintiff’s request for voluntary dismissal. 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.). IT IS SO ORDERED. DATED: November 9, 2016 s/ STACI M. YANDLE STACI M. YANDLE United States District Judge Page 2 of 2

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