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Boyer v. Zuercher

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


September 6, 2007

JOSHUA KEITH BOYER, PLAINTIFF,
v.
J. C. ZUERCHER, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Joe Billy McDade United States District Judge

OPINION A N D ORDER

Before the Court is Plaintiff's Petition to Preserve Evidence Before the Commencement of Suit. (Doc. 1.)

Plaintiff is an inmate in at Pekin Federal Correctional Institution and was involved in a fight on May 31, 2007. He was disciplined for his actions in the fight but believes that video surveillance tapes will show that any action which he took was in self defense. He is currently appealing the discipline taken against him through the prison appellate process. If his appeals are denied, he intends to file a Petition in this Court under 28 U.S.C. § 2241. However, he cannot file a Petition at this time because he has not exhausted his administrative remedies.

In the mean time, Plaintiff is concerned that the video will be destroyed. He has brought a Petition under Federal Rule of Civil Procedure 27(a) asking that the Court to enter an injunction barring the destruction of the video. And, he has not paid any filing fee with his Petition.

Rule 27(a) allows for deposition testimony to be taken before an action is filed, but does not provide for injunctive relief. A request for injunctive relief, if properly brought, would be filed either as a Civil Complaint under Federal Rule of Civil Procedure 3, or a Request for a Temporary Restraining Order under Federal Rule of Civil Procedure 65. Because Plaintiff is requesting a civil injunction, this Court will construe Plaintiff's Petition as a civil complaint requesting injunctive relief. Such a complaint requires a $350 filing fee in this Court.

Accordingly, Plaintiff will be given thirty days to pay the required $350 filing fee or file a request to proceed In Forma Pauperis with an accompanying trust fund statement.

IT IS THEREFORE ORDERED that Plaintiff shall pay the required $350 filing fee or file the necessary Petition within thirty days or this matter will be dismissed for want of prosecution. It is further ordered that the clerk shall construe Plaintiff's original petition (Doc. 1) as a civil complaint seeking injunctive relief.

ENTERED this 5th day of September, 2007.

20070906

© 1992-2007 VersusLaw Inc.



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