Davenport v. Shah et al

Filing 13

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 $400.00 remains due and payable despite Plaintiff's request for voluntary dismissal. Signed by Judge J. Phil Gilbert on 12/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK DAVENPORT, # N-80706,
Plaintiff,
vs.
VIPIN SHAW and
JANE DOE,
Defendants.

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Case No. 17-cv-985-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Mark Davenport, who is currently incarcerated at Pinckneyville Correctional
Center (“Pinckneyville”), brings this action pursuant to 42 U.S.C. § 1983 against two defendants
(Vipin Shaw, a physician and Jane Doe, an unidentified nurse) who allegedly denied him
adequate medical care at Pinckneyville in 2015 in connection with Plaintiff’s blood pressure.
(Doc. 1). He sues these defendants for exhibiting deliberate indifference to his medical needs in
violation of the Eighth Amendment. (Doc. 1, pp. 6-8).
Plaintiff was initially granted leave to proceed in District Court without prepaying fees or
costs (“IFP”). However, the Court subsequently determined that, prior to commencing this
action, Plaintiff “struck out” by filing three or more prisoner actions that were dismissed on the
grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be
granted. Accordingly, on November 8, 2017, finding that Plaintiff did not meet the imminent
danger requirement, the Court revoked Plaintiff’s IFP status. (Doc. 11). The Court ordered
Plaintiff to pay the filing fee no later than November 30, 2017.

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On November 28, 2017, Plaintiff mailed a Motion for Voluntary Dismissal (Doc. 12) to
the Court (placed in the prison mailbox system on November 28, 2017 and received by the Court
on December 4, 2017). Plaintiff seeks to dismiss the action pursuant to Federal Rule of Civil
Procedure 41(a)(1). 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 $400.00 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.).
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.

IT IS SO ORDERED.
DATED: December 7, 2017
s/J. Phil Gilbert
United States District Judge

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