Opinion
Civil Action 21-00220-BAJ-EWD
12-08-2021
KEITH HEAVNER #517416 v. LINDA I. APONTE, ET AL.
ORDER
JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
Before the Court is pro se Plaintiffs Motion to Dismiss and Stop Collections for the Filing Fee (Doc. 5). This Motion is in part a notice of dismissal and in part a true motion requesting cessation of withdrawals to pay the filing fee for this action.
Regarding Plaintiffs request that the lawsuit be dismissed, Federal Rule of Civil Procedure 41, provides that a "plaintiff may dismiss an action without a court order by filing ... a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed.R.Civ.P. art. 41(a)(1)(A)(i). The notice of dismissal is effective immediately. Qureshi v. U.S., 600 F.3d 523, 526 (5th Cir. 2010). The notice closes the case, the district court is divested of jurisdiction over the case (except for consideration of collateral issues or exercising its supervisory powers), and not even a perfunctory order closing the case is needed. Id. (citing American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)). Rule 41(a)(1)(B) provides that "unless the notice or stipulation states otherwise, the dismissal is without prejudice." Because Defendants have not been served and there has not been an answer or motion for summary judgment filed, the portion of Plaintiffs action that requests this matter be dismissed is functionally a Rule 41 (a)(1)(A)(i) notice of dismissal and should be treated as such.
However, to the extent Plaintiff requests cessation of the withdrawals to pay the filing fee in connection with this civil action, such is a collateral matter the Court must address despite the notice of dismissal. Pursuant to 28 U.S.C. § 1915(b), Plaintiff was required to pay the full amount of the Court's filing fee, consisting of an initial partial filing fee and other monthly payments. Voluntarily dismissing this action does not relieve Plaintiff of paying this statutorily required fee; thus, to the extent the Motion asks that collection of the fee cease, it is denied. Accordingly, IT IS ORDERED that, to the extent the instant Motion (Doc. 5) requests cessation of collection of the filing fee, it is DENIED.
IT IS FURTHER ORDERED that the "Motion" filed by Plaintiff Keith Heavner, is treated as a notice of voluntary dismissal pursuant to Rule 41 (a)(1) (A) (i), and the Clerk of Court is directed to CLOSE the case.
Baton Rouge, Louisiana