Holland v. City of Seattle et al

Filing 9

ORDER RE PLAINTIFF'S REQUEST FOR DISMISSAL by Hon. Mary Alice Theiler. The plaintiff shall file an amended complaint or advise the Court that he does, in fact, wish to dismiss the action by May 1, 2017. (cc: plaintiff with Amended 1983 Prisoner Civil Rights form)(ST)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 JOSEPH HOLLAND, Plaintiff, 9 10 11 12 Case No. C17-0170-RSM-MAT v. ORDER RE: PLAINTIFF’S REQUEST FOR DISMISSAL CITY OF SEATTLE, et al., Defendants. 13 14 This is a civil rights action proceeding under 42 U.S.C. § 1983. Plaintiff submitted his 15 complaint to the Court for filing on February 2, 2017. (Dkt. 1.) Plaintiff failed, however, to submit 16 with his complaint either the filing fee or an application to proceed with this action in forma 17 pauperis. The Clerk’s Office therefore sent plaintiff a letter advising him of this deficiency and 18 granting him thirty days to correct it. (See Dkt. 3.) Plaintiff timely corrected the deficiency by 19 submitting an application to proceed with this action in forma pauperis on February 23, 2017. 20 (Dkt. 4.) On February 27, 2017, the Court granted plaintiff’s application to proceed in forma 21 pauperis and his complaint was filed. (See Dkts. 5 and 6.) On the same date, this Court issued an 22 Order declining to serve plaintiff’s complaint and granting him leave to file an amended complaint 23 correcting certain specified deficiencies. (Dkt. 7.) ORDER RE: PLAINTIFF’S REQUEST FOR DISMISSAL - 1 1 On March 17, 2017, the Court received a letter from plaintiff in which he expresses 2 confusion over the fact that he had submitted a form demonstrating his inability to pay the filing 3 fee, but then received an Order from the Court advising him that he was going to be charged 4 anyway. (Dkt. 8.) Plaintiff indicates that he cannot, and will not, pay the filing fee while he is 5 incarcerated and he therefore asks that this action be dismissed. (Id.) 6 Pursuant to 28 U.S.C. § 1915(a), a Court may authorize the commencement of an action 7 without the prepayment of fees. However, when a prisoner is granted leave to proceed without the 8 prepayment of fees, the prisoner-plaintiff is still required to pay the full amount of the filing fee, 9 he or she is simply permitted to do so over time rather than paying the entirety of the fee up front. 10 See 28 U.S.C. § 1915(b). As a part of his in forma pauperis application, plaintiff signed an 11 Acknowledgement and Authorization form which makes clear that he is responsible for payment 12 of the full filing fee under § 1915. (See Dkt. 4 at 3.) 13 Because plaintiff has now formally requested, and been granted, in forma pauperis status, 14 he will remain responsible for the filing fee even if he elects not to proceed with this action. This 15 means that the facility in which plaintiff is confined will automatically remove funds from his 16 inmate account when the criteria specified in the Court’s Order granting plaintiff leave to proceed 17 in forma pauperis (Dkt. 5) are met, and will forward those funds to the Court. Given that plaintiff 18 will remain obligated to pay the filing fee whether or not he chooses to proceed with this action, 19 the Court deems it appropriate to inquire of plaintiff whether he indeed wishes to have this action 20 dismissed at this juncture, or whether he would prefer to proceed. 21 Accordingly, the Court hereby ORDERS as follows: 22 (1) 23 Not later than May 1, 2017, plaintiff shall either file an amended complaint consistent with the Order declining to serve his original complaint which was issued by this Court ORDER RE: PLAINTIFF’S REQUEST FOR DISMISSAL - 2 1 on February 27, 2017, or he shall advise the Court that he does, in fact, wish to dismiss this action. 2 If plaintiff fails to communicate his intention to the Court by the date set forth above, the Court 3 will dismiss this action for failure to prosecute. 4 5 6 (2) The Clerk is directed to send copies of this Order to plaintiff and to the Honorable Ricardo S. Martinez. DATED this 31st day of March, 2017. 7 A 8 Mary Alice Theiler United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER RE: PLAINTIFF’S REQUEST FOR DISMISSAL - 3

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