Allgood v. Buchanan et al
Filing
12
ORDER that Plaintiff's letter construed as a Motion for Voluntary Dismissal 11 is GRANTED, but Plaintiff is still required to pay the filing fee. As this action has now been dismissed, the Court's order requiring Plaintiff to submit an administrative remedies statement, 8 , is moot. Signed by Chief Judge Frank D. Whitney on 11/28/17. (Pro se litigant served by US Mail.)(emw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-130-FDW
BRIAN ALLGOOD,
)
)
Plaintiff,
)
)
vs.
)
)
FNU BUCHANAN, et al.,
)
)
Defendants.
)
__________________________________________)
ORDER
THIS MATTER is before the Court on the pro se Plaintiff’s letter, (Doc. No. 11), that is
construed as a Motion for Voluntary Dismissal under Rule 41 of the Federal Rules of Civil
Procedure.
The Federal Rules of Civil Procedure state that a plaintiff may voluntarily dismiss an action
without a court order “before the opposing party serves either an answer or a motion for summary
judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). No Defendant has filed an answer or dispositive motion
so Plaintiff could have voluntarily dismissed this action without a motion pursuant to Rule 41. In
any event, the Court will grant Plaintiff’s motion for voluntary dismissal.
Plaintiff requests in the motion that the Court to withdraw the Order requiring partial
payment from Plaintiff’s trust account because he does not want to have to pay the filing fee. See
(Doc. No. 10). The Prison Litigation Reform Act (“PLRA”) provides that, “if a prisoner brings a
civil action … in forma pauperis, the prisoner shall be required to pay the full amount of the filing
fee….” 28 U.S.C. § 1915(b)(1). Thus, the PLRA “makes prisoners responsible for their filing fees
the moment the civil action or appeal is filed, … [and] by filing the complaint or notice of appeal,
the prisoner waives any objection to the fee assessment by the district court.” McGore v.
1
Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (citation omitted), overruled on other grounds
by Jones v. Bock, 549 U.S. 199 (2007); see also Goins v. Decaro, 241 F.3d 260, 262 (2d Cir. 2001)
(“we are not at liberty to read into the PLRA judicial authority to cancel remaining indebtedness
for withdrawn appeals.”); Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) (“the filing fee
is to be assessed for the privilege of initiating an appeal, without regard to the subsequent
disposition of the matter.”). Plaintiff is still required to pay the full filing fee even though he is
voluntarily dismissing this action, and therefore, his request to discontinue payments from his
prison account is denied. See McGore, 114 F.3d at 607; 28 U.S.C. § 1915(b)(1).
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Voluntary Dismissal, (Doc. No. 11), is GRANTED, but
Plaintiff is still required to pay the filing fee.
2.
The Clerk is instructed to terminate this action.
3.
As this action has now been dismissed, the Court’s order requiring Plaintiff to
submit an administrative remedies statement, (Doc. No. 8), is moot.
Signed: November 28, 2017
2
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?