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Simmons v. Cross

United States District Court, S.D. Illinois

October 29, 2014

DEXTER SIMMONS, #XXXXX-XXX, Plaintiff,
v.
WARDEN CROSS, D. BUTTS, K. SCHNEIDER, SILANATH TERPENNING, SCHMICHT, MICHELLE TOWNSEND-WATTS, and BETTY ULMER, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, Chief District Judge.

Plaintiff Dexter Simmons is currently incarcerated at the Federal Correctional Institution in Tucson, Arizona. On October 20, 2014, he filed this action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in the Southern District of Illinois (Doc. 1). In the complaint, Plaintiff alleges that several officials violated his Eighth Amendment rights in 2014, during his incarceration at the Federal Correctional Institution in Greenville, Illinois. The complaint currently awaits preliminary review under 28 U.S.C. § 1915A.

At the time he filed this lawsuit, Plaintiff also filed a motion seeking leave to proceed in forma pauperis (Doc. 2), which is still pending. He has since filed a second motion for leave to proceed in forma pauperis (Doc. 4), which is also pending.

On October 29, 2014, Plaintiff filed a motion seeking voluntary dismissal of this action (Doc. 5). In the motion, he explained that this lawsuit was mistakenly filed as a Bivens action, when Plaintiff intended to file a complaint at a later date under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680. He has not yet exhausted his administrative remedies for those claims and now asks the Court to dismiss this action without imposing a filing fee (Doc. 5, p. 2). Alternatively, Plaintiff asks the Court to hold this case open, so that he can file an amended complaint in approximately six months without incurring another filing fee.

Plaintiff's obligation to pay the filing fee for this action was incurred at the time the action was filed, and a filing fee of $350.00[1] remains due and payable whether or not this action is voluntarily dismissed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). However, in light of Plaintiff's timely request to voluntarily dismiss this action before the Court conducted its preliminary review of the complaint under 28 U.S.C. § 1915A, the Court will not assess an additional filing fee for the separate action Plaintiff anticipates filing pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, in the Southern District of Illinois. In order to bring this action without incurring another filing fee, however, Plaintiff will be required to file a copy of this Order with his complaint.

IT IS HEREBY ORDERED that Plaintiff's two motions for leave to proceed in forma pauperis (Docs. 2, 4) are GRANTED. The Court will enter a separate Order addressing the amount of the initial partial filing fee.

IT IS FURTHER ORDERED that Plaintiff's motion for voluntary dismissal (Doc. 5) is GRANTED, and this action is DISMISSED without prejudice. See FED. R. CIV. P. 41(a)(1)(A)(i).

IT IS ORDERED that Plaintiff's motion seeking waiver of the filing fee in this action is DENIED. However, it is also ORDERED that the filing fee for Plaintiff's next action filed in the Southern District of Illinois pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, shall be WAIVED, on condition that Plaintiff files a copy of this Order along with the complaint.

The Clerk's Office is DIRECTED to close this case and enter judgment accordingly.

IT IS SO ORDERED.


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