Moreno v. McGuffin et al

Filing 9

ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF'S CASE AND ORDER VACATING INITIAL PARTIAL FILING FEE AND COLLECTION ORDER. (Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DIONISIO BALDERAS MORENO,
Plaintiff,
VS.
MCGUFFIN, et al,
Defendants.

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February 24, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-00037

ORDER GRANTING VOLUNTARY DISMISSAL OF
PLAINTIFF’S CASE AND ORDER VACATING

INITIAL PARTIAL FILING FEE AND COLLECTION ORDER
Plaintiff, an inmate in the custody of the Texas Department of Criminal Justice –
Criminal Institutions Division (DTDCJ-CID), filed this pro se civil rights complaint on
February 5, 2016.

Plaintiff alleges his buttocks and groin area were touched over his

clothing during a routine pat down when he was going from his housing area to TDCJ
recreation on September 24, 2015. Plaintiff’s primary complaint is that he received a
TDCJ disciplinary case and a resulting loss of good time and line status for assaulting an
officer when he pushed the officer’s hands away during the search. Plaintiff filed, and
the Court granted, his application to proceed in forma pauperis (D.E. 2, 6). The Court
further ordered collection of the filing fee pursuant to the Prison Litigation Reform Act
(PLRA). (D.E. 6).

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The Court held a Spears1 hearing on February 24, 2016, where Plaintiff appeared
in person and explained the basis of his action to the undersigned Magistrate Judge. At
the hearing the undersigned explained the previously imposed collection order requiring
Plaintiff to pay the $350 filing fee over time from deposits into his inmate account. See
28 U.S.C. § 1915(b)(1).

The undersigned also explained that Plaintiff’s civil rights

claims would likely be dismissed because he had not yet successfully challenged his
disciplinary case in a habeas proceeding. See Heck v. Humphrey, 512 U.S. 477 (1994).
The Plaintiff voluntarily moved to dismiss his case so that he could pursue a
habeas action before pursuing this civil rights action. Because Plaintiff did so at the very
early stages of his case, the undersigned finds that vacating the collection order is
appropriate. Therefore, it is ORDERED that:
1. Plaintiff’s civil rights action is DISMISSED without prejudice.
2. The collection order entered on February 8, 2016, ordering TDCJ to collect the
filing fee from Plaintiff’s inmate account (D.E. 6) is VACATED.
3. The institution having custody of Plaintiff shall cease the collection of the
filing fee in this case.
4. The Clerk of Court will send a copy of this Order by certified or first class
mail or by other electronic means to TDCJ–Office of the General Counsel,
P.O. Box 13084, Austin, Texas 78711.
ORDERED this 24th day of February, 2016.
___________________________________
Jason B. Libby
United States Magistrate Judge
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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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