Opinion
Case No. CV-06-96-S-BLW.
October 16, 2006
ORDER
Pending before the Court in this closed care are Plaintiff's Motion to Withdraw Claims (Docket No. 11) and Motion to Change Official Reason for Dismissal of Action (Docket No. 12). Plaintiff argues that his Motion to Withdraw Claims was filed "under the mailbox rule" prior to the Court's dismissal of this action with prejudice. He seeks to avoid having his case be counted as a strike against him under 28 U.S.C. § 1915(g) by asking the Court to vacate its Order and allow dismissal of his case without prejudice.
The Motion to Withdraw states that the reason for withdrawal of the claims is "for further review and possible exhaustion of state remedies." In other words, the Motion suggests that he may bring the case again if he has the opportunity to do so.
The "mailbox rule" provides that a legal document is deemed filed on the date a prisoner delivers it to the prison authorities for filing by mail, rather than the date it is actually filed with the clerk of court, to prevent prisoner litigants from missing important court deadlines. See Houston v. Lack, 487 U.S. 266 (1988). The Court is not aware of any case that applies the mailbox rule to avoid the effect of an order dismissing a non-meritorious case with prejudice. One of the purposes of the PLRA — to make inmates accountable for the decision to file the lawsuit — would be thwarted if Plaintiff's reasoning were adopted. Cf. Goins v. Decaro, 241 F.3d 260, 261 (2d Cir. 2001) (rejecting a request for a refund of appellate fees after voluntary withdrawal of appeal). For these reasons, the Motions shall be denied.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Withdraw Claims (Docket No. 11) is DENIED.
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion to Change Official Reason for Dismissal of Action (Docket No. 12) is DENIED.