Dale et al v. Kaemingk et al

Filing 85

ORDER granting in part and denying in part motions to voluntarily dismiss and for return of filing fees by plaintiffs Robert Blackwell [Docket No. 79], Demetrius Colaites [Docket No. 82], and Trevor Erickson [Docket No. 83]. Plaintiffs are dismissed by action of the clerk's office, but remain responsible for their filing fees. Signed by US Magistrate Judge Veronica L. Duffy on 02/22/2016. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES IRVING DALE, BRIAN MICHAEL
HOLZER, MICHAEL EUGENE KOCH,
DEMETRIUS PETRO COLAITES,
TREVOR JOHN ERICKSON, GUY
ALLEN BLESI, KEVIN CHRISTOPHER
CRANK, JAMES EDWARD HAYES,
EDWARD EUGENE DARITY, JOSIA
JEREMIAH FUERST, ROBERT
EUGENE BLACKWELL, JEFFERY
JACOB-DANIEL KLINGHAGEN,
DENNIS LOUIS STANISHII, UNKNOWN
MIKE DURFEE STATE PRISON
INMATES,
Plaintiffs,
vs.
DENNIS KAEMINGK, SOUTH DAKOTA
SECRETARY OF CORRECTIONS; IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; ROBERT DOOLEY,
WARDEN AT MDSP AND THE
DIRECTOR OF PRISON OPERATIONS
FOR THE SOUTH DAKOTA DOC; IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JOSHUA KLIMEK, UNIT
MANAGER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
TAMMY DEJONG, UNIT
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
SUSAN JACOBS, ASSOCIATE WARDEN
AT MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; REBECCA
SCHIEFFER, ASSOCIATE WARDEN
AND THE ADMINISTRATIVE REMEDY
COORDINATOR AT MDSP; IN HER

4:15-CV-04103-RAL
ORDER GRANTING IN PART AND
DENYING IN PART THREE
PLAINTIFFS’ MOTIONS TO
VOLUNTARILY DISMISS AND FOR
RETURN OF FILING FEES
[DOCKET NOS. 79, 82, & 83]

INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK, DEPUTY
WARDEN AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL DOYLE, CORRECTIONAL
OFFICER, WITH THE RANK MAJOR, AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JEREMY
LARSON, CORRECTIONAL OFFICER,
WITH THE RANK SERGEANT, AND THE
DISCIPLINARY HEARING OFFICER AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; COREY TYLER,
CORRECTIONAL OFFICER, WITH THE
RANK SERGEANT, AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL MEYER, CORRECTIONAL
OFFICER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
KELLY TJEERDSMA, CORRECTIONAL
OFFICER, WITH THE RANK
CORPORAL, AT MDSP; IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITY;
LORI DROTZMAN, GENERAL
EDUCATION DIPLOMA TEACHER,
WHO ALSO IS IN CHARGE OF THE
LAW LIBRARY AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL JOE HANVEY, PHYSICIANS
ASSISTANT AND HEALTH CARE
PROVIDER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
ANDRA GATES, NURSING
SUPERVISOR AND HEALTH CARE
PROVIDER AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
KELLY SWANSON, HEALTH SERVICES
SUPERVISOR AT MDSP; IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITY;
STEPHANIE HAMILTON, NURSE AT
MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; MARY
CARPENTER, EMPLOYEE OF THE
SOUTH DAKOTA DEPARTMENT OF
HEALTH AND ASSISTS WITH INMATE
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HEALTH CARE DECISIONS FOR
INMATES INCARCERATED AT MDSP;
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; BARRY SCHROETER,
SUPERVISOR FOR CBM
CORRECTIONAL FOOD SERVICES AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
BENBOON, DIETITIAN EMPLOYED BY
CBM CORRECTIONAL FOOD
SERVICES; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; CBM
CORRECTIONAL FOOD SERVICES,
PRIVATE FOR PROFIT COMPANY
CONTRACTED BY THE SOUTH
DAKOTA DOC TO PROVIDE MEALS TO
INMATES INCARCERATED AT MDSP;
DELMAR SONNY WALTERS,
ATTORNEY AT LAW CONTRACTED BY
THE SOUTH DAKOTA DOC TO
PROVIDE LEGAL SERVICES TO
INMATES INCARCERATED AT MDSP;
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN DEPARTMENT
OF CORRECTIONS EMPLOYEES,
CORRECTIONAL OFFICERS
EMPLOYED BY THE SOUTH DAKOTA
DOC WHO WORK AT MDSP;
UNKNOWN DEPARTMENT OF
CORRECTIONS HEALTH SERVICES
STAFF, HEALTH SERVICES
DEPARTMENT STAFF EMPLOYED BY
THE SOUTH DAKOTA DOC TO
PROVIDE HEALTH CARE FOR
INMATES INCARCERATED AT MDSP;
AND UNKNOWN CBM CORRECTIONAL
FOOD SERVICES EMPLOYEES,
EMPLOYEES OF CBM CORRECTIONAL
FOOD SERVICES AT MDSP;
Defendants.

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Pursuant to their written requests, Plaintiffs Robert Eugene Blackwell,
Demetrius Petro Colaites and Trevor John Erickson have been terminated as
plaintiffs in this case pursuant to FED. R. CIV. P. 41(a)(1)(A). Further, each
request in some fashion the return of the filing fees already paid or that no
further fees be assessed. See Docs. 79, 82, 83. Those requests must be
denied.
The obligation to pay a filing fee accrues the moment a plaintiff files his
complaint with the court, and it cannot be avoided merely because the case is
eventually dismissed. Anderson v. Sundquist, 1 F.Supp.2d 828, 830 n. 5 (W.D.
Tenn. 1998). One of the purposes of the Prison Litigation Reform Act is to
require the prisoners to pay a very small share of the large burden
they place on the Federal judicial system by paying a small filing
fee upon commencement of lawsuits. In doing so, the provision
will deter frivolous inmate lawsuits. The modest monetary outlay
will force prisoners to think twice about the case and not just file
reflexively. Prisoners will have to make the same decision that law
abiding Americans must make: Is the lawsuit worth the price?
Roller v. Gunn, 107 F.3d 227, 231 (4th Cir. 1997) (quoting 141 Cong. Rec. at
S7526 (May 25, 1995). See also In Re: Tyler, 110 F.3d 528, 529-30 (8th Cir.
1997) (prisoner will be assessed full filing fee even if his case is dismissed
because "the PRLA makes prisoners responsible for their filing fees the moment
the prisoner brings a civil action or files an appeal.").
Accordingly, it is hereby
ORDERED that the motions to be dismissed as plaintiffs from this
lawsuit by Robert Eugene Blackwell, Demetrius Petro Colaites and Trevor John
Erickson [Docket Nos. 79, 82 & 83] are granted by virtue of the clerks’ office
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terminating them from this lawsuit pursuant to FED. R. CIV. P. 41(a)(1)(A).
These plaintiffs’ motions to be relieved of the responsibility for paying the
entirety of the $350.00 filing fee is denied.
DATED this 22nd day of February, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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