West v. Unknown Party et al

Filing 9

ORDER DISMISSING CASE 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 1/3/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENTES WEST,
#K-82893,
Plaintiff,
vs.

Case No. 16-cv-00987-SMY

UNKNOWN PARTY
S. BEBOUT,
Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
On August 29, 2016, this case was severed from another civil rights action 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 concerns whether an unknown person violated Plaintiff’s rights when he destroyed his
property, whether the same or another unknown person violated Plaintiff’s rights when he
charged Plaintiff money for the repairs of that property and whether Internal Affairs Officer
Bebout violated his rights by making false statements about the damage to Plaintiff’s property.
(Doc. 1, p. 10). This case also concerns whether Bebout violated Plaintiff’s rights when she
allowed him to be housed next to a particular inmate at Menard. Id. Plaintiff seeks money
damages. (Doc. 2, p. 38).
The instant case did not survive preliminary review under 28 U.S.C. § 1915A and this
Court dismissed it without prejudice on December 12, 2016. (Doc. 7). However, Plaintiff was
granted leave to file a First Amended Complaint on or before January 9, 2017 if he wished to re-

plead his claims against 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 December 19, 2016, Plaintiff filed a Motion to Voluntarily Dismiss this action.
(Doc. 8). He did not file a First Amended Complaint and, in fact, expressed his intention not to
do so. 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: January 3, 2017
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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