Miller v. Hacker et al

Filing 11

ORDER granting 10 Motion to Dismiss. The clerk's office is directed to dismiss without prejudice the plaintiff's action. The Clerk's office is directed to return the overpayment of $16.48 and to notify the institution having custody of the plaintiff to no longer collect the remaining portion of the filing fee by sending it a copy of this order. Signed by Judge Mark W Bennett on 8/31/15. (copy w/nef mailed to pro se plaintiff and Warden/Administrator of North Central Correctional Facility, and eCR Financial) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

RICHARD E. MILLER, JR.,
Plaintiff,

No. C14-3077-MWB

vs.
JANA HACKER, JOEL KOSINSKI,
ROBIN BAGBY, WARDEN SMITH,
STEVE JENKINS, BALDWIN,
WARDEN MCKINNEY,

ORDER

Defendants.
____________________________
The matter before the court is the plaintiff’s motion to dismiss (docket no. 10). The
plaintiff filed such motion on June 15, 2015. Previously, the court directed the plaintiff
to submit a partial payment of the filing fee, made several observations regarding the
merits of the plaintiff’s complaint and noted the following:
In the event that the plaintiff no longer desires to pursue this
action after considering his medical needs and the medical
treatment that he is being provided, he may notify the court
that he no longer desires to sue the named defendants. In
response to such notice, the court will dismiss without
prejudice the plaintiff’s action and instruct the institution
having custody of the plaintiff to no longer collect the
remaining portion of the filing fee. The plaintiff’s notice, if
any, must be filed prior to the court’s initial review under 28
U.S.C. § 1915.
In response, the plaintiff submitted $21.71, and the institution having custody of the
plaintiff subsequently collected a monthly payment of $16.48. In his motion to dismiss,
the plaintiff requests that the court dismiss without prejudice his action, instruct the

institution having custody of the plaintiff to no longer collect the remaining portion of the
filing fee and direct the clerk’s office to reimburse the $21.71 that he has already paid.
In light of the record, the plaintiff’s motion to dismiss is granted. The clerk’s office
is directed to dismiss without prejudice the plaintiff’s action. The court declines to direct
the clerk’s office to reimburse the initial partial payment of $21.71 because he commenced
the instant action the moment he submitted his complaint and, therefore, became
responsible for paying the entire $350.00 filing fee. See In re Tyler, 110 F.3d 528, 529-30
(8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for
their filing fees the moment the prisoner brings a civil action or files an appeal.”).
Nonetheless, consistent with the court’s prior order, the clerk’s office is directed to return
the overpayment of $16.48 and to notify the institution having custody of the plaintiff to
no longer collect the remaining portion of the filing fee by sending it a copy of this order.
IT IS SO ORDERED.
DATED this 31st day of August, 2015.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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