Ferguson v. Lynch et al

Filing 14

Judge Richard G. Stearns: ORDER entered. re 13 MOTION to Withdraw filed by James Michael Ferguson. Plaintiffs pro se motion is treated as a notice of voluntary dismissal and this action is dismissed without prejudice. The earlier assessment, pursuant to 28 U.S.C. § 1915(b)(2), of the filing fee is revoked. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10222-RGS
JAMES MICHAEL FERGUSON
v.
LORETTA E. LYNCH, et al.
ORDER ON PLAINTIFF’S MOTION TO WITHDRAW
April 12, 2016
For the foregoing reasons, plaintiff’s motion to withdraw will be
treated as a notice of voluntary dismissal and the earlier assessment of the
filing fee will be revoked.
BACKGROUND
On February 8, 2016, James Michael Ferguson, while confined to the
Wyatt Detention Facility in Rhode Island, filed his self-prepared complaint
accompanied by a motion to proceed in forma pauperis. See Docket. By
Order dated February 19, 2016, the motion was granted and summons issued
for service of the defendants. See Docket No. 5. A notice for prisoner filing
fee payment was mailed to the Wyatt Detention Facility. See Docket No. 6.
The order and summons were returned to the court as undeliverable.
See Docket No. 8. One week before plaintiff filed a notice of change of

address, the clerk remailed the order and summons to plaintiff at FCI Jesup.1
See Docket Nos. 9, 10.
Now before the Court is plaintiff’s Motion to Withdraw Complaint
Without Prejudice. See Docket No. 13. Plaintiff states, among other things,
that he “feels his rights would be better served by Withdrawing (sic) the
instant complaint Without Prejudice (sic) until the defendants have clearly
showed deliberate indifference toward the plaintiff and his needs under all
of the plaintiff’s current circumstances.” Id.
DISCUSSION
The Court construes plaintiff’ motion to withdraw, Docket No. 13, as a
notice of voluntary dismissal. A motion for voluntary dismissal in the federal
system is controlled by Federal Rule of Civil Procedure 41(a). See Fed. R.
Civ. P. 41(a)(1)-(2). Under Rule 41(a)(1), a plaintiff can voluntarily dismiss
an action without order of the court by filing either (i) a notice of dismissal
before the defendant files an answer or motion for summary judgment, or
(ii) a stipulation of dismissal signed by all parties who have appeared in the
action. See Fed. R. Civ. P. 41(a)(1).

Because the court remailed the order and summons to the incorrect
address at FCI Jesup, it was returned as undeliverable and then remailed to
the correct address. See Docket Nos. 11-12.

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Because plaintiff is incarcerated, he is subject to the fee-paying
provisions of the Prison Litigation Reform Act. See 28 U.S.C. §§ 1915(b)(1),
1915(e)(2). At least one court has recognized that once prisoners are allowed
"to proceed in forma pauperis, they owe the United States of America the full
filing fee, and this is true even if they voluntarily dismiss their cases." See
Copley v. Henderson, 980 F. Supp. 322, 323 (D. Neb. 1997); Cf. Sumner v.
Tucker, 9 F. Supp. 2d 641, 643 (E.D. Va. 1998) (dismissing without prejudice
a prisoner's Section 1983 action upon plaintiff's motion for voluntary
dismissal, while at the same time disposing of the action as frivolous under
28 U.S.C. § 1915(g) when the Court had expended significant time and
resources reviewing plaintiff's claims).
Although the Court has ruled on plaintiff's motion to proceed in forma
pauperis, the court has not expended significant time and resources
reviewing the merits of the complaint.

Because plaintiff is seeking to

withdraw this action at such an early stage, this action may be dismissed by
plaintiff and the court will revoke the assessment of the filing fee that had
been assessed pursuant to 28 U.S.C. § 1915(b)(2), of the filing fee is revoke
ORDER
For the foregoing reasons, plaintiff’s pro se motion is treated as a
notice of voluntary dismissal and this action is dismissed without prejudice.
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The earlier assessment, pursuant to 28 U.S.C. § 1915(b)(2), of the filing fee is
revoked.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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