Turnbough v. Thaler

Filing 10

MEMORANDUM Adopting 7 Report and Recommendations of the US Magistrate Judge and Entering Final Judgment. It is ORDERED that the plaintiff's 9 request for voluntary dismissal of his civil action is GRANTED. This civil action is DISMISSED without prejudice on the request of the plaintiff. All motions not previously ruled upon are DENIED. Signed by Judge Michael H. Schneider on 9/30/11. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MICHAEL JOHN TURNBOUGH

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v.

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RICK THALER

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CIVIL ACTION NO. 6:11cv336

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Michael Turnbough, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges.
On June 30, 2011, the Magistrate Judge ordered Turnbough to pay the statutory filing fee of
$350.00 or to submit an application for leave to proceed in forma pauperis which was accompanied
by a certified inmate trust account data sheet, as required by 28 U.S.C. §1915(b). Turnbough filed
a response asking that the order be “zeroed out” based on a “non-negotiable acceptance for value.”
He attached a number of exhibits, but none of these were of legal effect, nor did any of them excuse
Turnbough’s obligation to pay the fee or file a proper application for leave to proceed in forma
pauperis.
When Turnbough did not comply with the order or show good cause for this failure, the
Magistrate Judge issued a Report on August 13, 2011, recommending that the lawsuit be dismissed
without prejudice. Turnbough did not file objections to this Report; instead, he filed a document
which he styled as a “motion to remove cause.” In this document, Turnbough states that he wishes
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to dismiss his case because it apparently was not “directed to the proper organic common-law Article
III venue,” but was filed “into an unconstitutional venue within a bankruptcy court of
admiralty/maritime jurisdiction.”
The Court has reviewed the pleadings and the Report of the Magistrate Judge and has
determined that this Report is correct. Nonetheless, Turnbough’s request for voluntary dismissal
should be granted. See Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (plaintiff has
absolute right to dismiss his complaint under Rule 41(a), Fed. R. Civ. P., prior to the filing of an
answer or motion for summary judgment); Thomas v. Phillips, 83 Fed.Appx. 661, 2003 WL
22965565 (5th Cir., December 17, 2003) (citing Carter). It is accordingly
.
ORDERED that the Plaintiff’s request for voluntary dismissal of his civil action, contained
within his “voluntary removal of cause” (docket no. 9) is GRANTED. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice
on the request of the Plaintiff. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 30th day of September, 2011.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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