Pullens v. Ayaj et al
MEMORANDUM AND ORDER - Plaintiff's request for dismissal of this action (filing 30 ) is granted. This matter is dismissed without prejudice. Plaintiff's correspondence (filing 31 ), construed as a motion to stop collection of his filing f ee payments, is denied. Plaintiff's other pending motions (filings 4 & 29 ) are denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)
8:21-cv-00478-RGK-PRSE Doc # 38 Filed: 05/10/22 Page 1 of 2 - Page ID # 161
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
AYAJ, Mr.; MR.
BOYD, Mr.; HOGAN, Ms.; NELSON,
Ms.; LOCUS, Mr.; FRAKES, Mr.; and
This matter is before the court on Plaintiff’s Motion to Dismiss filed on
April 4, 2022, which the court construes as a motion to voluntarily dismiss
pursuant to Federal Rule of Civil Procedure 41. (Filing 30.) Also before the court
is Plaintiff’s correspondence filed on April 4, 2022 (filing 31), which the court
liberally construes as a motion to stop collection of his filing fee payments.
Rule 41(a) states that a plaintiff may dismiss an action without a court order
by filing “a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). In addition,
Rule 41(a)(2) provides that an action may be dismissed at the plaintiff’s request
“on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Here,
Plaintiff asks the court to dismiss this action and Defendants have not been served
with process. Upon consideration, the court will grant Plaintiff’s motion and
dismiss this matter without prejudice.
Even though this matter is being dismissed, Plaintiff remains responsible for
payment of his court filing fees. As Plaintiff has been repeatedly advised, the
Prison Litigation Reform Act (PLRA) “makes prisoners responsible for their filing
8:21-cv-00478-RGK-PRSE Doc # 38 Filed: 05/10/22 Page 2 of 2 - Page ID # 162
fees the moment the prisoner brings a civil action or files an appeal,” In re Tyler,
110 F.3d 528, 529–30 (8th Cir. 1997), and a district court has no discretion to
waive the fee payment requirement. Nor is Plaintiff relieved from his obligation to
pay the filing fee because of his pending bankruptcy matter. “[A] prisoner’s
obligation to pay filing fees pursuant to 28 U.S.C. § 1915(b) is not dischargeable in
bankruptcy.” Chapman v. Houston, No. 4:07CV3081, 2007 WL 2306908 (D. Neb.
Aug. 8, 2007). Accordingly, Plaintiff’s motion to stop collection of payments
(filing 31) is denied.
IT IS THEREFORE ORDERED that:
Plaintiff’s request for dismissal of this action (filing 30) is granted.
This matter is dismissed without prejudice.
Plaintiff’s correspondence (filing 31), construed as a motion to stop
collection of his filing fee payments, is denied.
Plaintiff’s other pending motions (filings 4 & 29) are denied as moot.
A separate judgment will be entered in accordance with this
Memorandum and Order.
Dated this 10th day of May, 2022.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?