Killebrew, Shondell v. Smith, Judy et al

Filing 49

ORDER denying 21 Motion for assistance in obtaining a legal loan to litigate this case. Defendants may have until August 19, 2016, in which to advise plaintiff and the court whether they agree to dismissal of this action without prejudice. If defendants agree to such a dismissal, then the clerk of court is directed to close this case. If defendants do not agree to such a dismissal, then plaintiff may have until September 2, 2016, in which to withdraw his motion for voluntary dismissal or to advise the court that he has no objection to a dismissal with prejudice. If, by September 2, 2016, plaintiff fails to respond to this order, the court will direct the clerk to enter judgment dismissing this case with prejudice. Signed by District Judge James D. Peterson on 8/5/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SHONDELL KILLEBREW,
Plaintiff,
v.
HANS KUSTER and TIM IKERT,

ORDER
15-cv-52-jdp

Defendants.
Plaintiff Shondell Killebrew, a Milwaukee resident formerly incarcerated at the
Oshkosh Correctional Institution, brings claims that he was forced to spend a month in a
cold segregation cell. Now before the court are several motions by the parties.
While plaintiff was still incarcerated, he filed a motion for a court order directing the
state to extend his legal loan. This question has been mooted by plaintiff’s release, but even if
plaintiff were still incarcerated, there would be no reason to grant his request. It is generally
this court’s policy to not interfere with the state’s legal loan program. In an extreme
circumstance, the court might intervene to ensure that an incarcerated plaintiff has adequate
postage and writing materials to access the court. But based on the various materials plaintiff
has filed in this case, including copies of his discovery requests, there is no question that
plaintiff has had sufficient resources to litigate this case.
Each side has filed a motion for summary judgment. Dkt. 32 and 34. Rather than
respond to defendants’ motion, plaintiff filed a motion to dismiss the case “due to financial
limitation and invoking a strike.” Dkt. 48.
It is up to plaintiff to decide whether his financial situation out of prison is such that
he does not want to continue litigating this case. By his reference to a “strike,” I take plaintiff

to mean that he does not want to risk incurring a strike under 28 U.S.C. § 1915(g) by seeing
the case dismissed for being “frivolous, malicious, or [for] fail[ure] to state a claim upon
which relief may be granted.” At this point, the only way I would assess plaintiff a strike
would be the rare circumstance in which the proceedings made clear that plaintiff’s case was
plainly frivolous or malicious. But it is up to plaintiff to decide whether he wishes to continue
with this lawsuit, with one important caveat.
When a motion for voluntary dismissal is filed after a defendant has filed an answer,
Rule 41(a)(2) provides that the action may be dismissed by the plaintiff “only by court order,
on terms that the court considers proper.” Because defendants have been required to defend
this action, I will grant plaintiff's motion for voluntary dismissal only on the condition that
the dismissal is “with prejudice,” which means that plaintiff will be barred from bringing the
claim in his current case in any future action, unless defendants agree to a dismissal without
prejudice. If defendants do not agree to a dismissal without prejudice, plaintiff will have an
opportunity to withdraw his motion.

ORDER
IT IS ORDERED that:
1. Plaintiff Shondell Killebrew’s motion for extension of legal loan, Dkt. 21, is
DENIED.

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2. Defendants may have until August 19, 2016, in which to advise plaintiff and the
court whether they agree to dismissal of this action without prejudice. If
defendants agree to such a dismissal, then the clerk of court is directed to close
this case. If defendants do not agree to such a dismissal, then plaintiff may have
until September 2, 2016, in which to withdraw his motion for voluntary dismissal
or to advise the court that he has no objection to a dismissal with prejudice. If, by
September 2, 2016, plaintiff fails to respond to this order, the court will direct the
clerk to enter judgment dismissing this case with prejudice.
Entered August 5, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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