Opinion
24-3062-JWL
08-06-2024
NICO BASKIN, Plaintiff, v. FORT SCOTT POLICE DEPARTMENT, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
This matter is before the Court on two motions filed by Plaintiff. The first is a Motion to Dismiss (Doc. 11). Plaintiff states that he wants to dismiss the case because there are some deficiencies with the Complaint, as noted in the Memorandum and Order to Show Cause (Doc. 9). He further states that he intends to re-file the case properly in the future. (Doc. 11, at 1.)
Rule 41(a)(1) provides that “the plaintiff may dismiss an action without a court order by filing (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Fed.R.Civ.P. 41(a)(1). The defendants to this suit have not been served and have not filed any response to the Complaint, making voluntary dismissal under Rule 41 appropriate. A voluntary dismissal pursuant to Rule 41(a)(1) is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is necessary. See Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). The notice closes the file. See id.
Plaintiff's second motion (Doc. 12) seeks waiver of the filing fee in this matter. Plaintiff states that he was aware of and prepared to pay the full filing fee, but his family has recently encountered some financial difficulties. (Doc. 12, at 1.)
28 U.S.C. § 1915(b)(1) provides that “if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.” (Emphasis added.) The mandatory language of the statute indicates that the Court lacks the authority to excuse Plaintiff from paying the filing fee, and Plaintiff has provided no factual or legal basis for the Court to relieve him of this statutory obligation. Plaintiff's motion is denied.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Dismiss (Doc. 11) is granted.
IT IS FURTHER ORDERED that this action is dismissed without prejudice under Fed.R.Civ.P. 41(a).
IT IS FURTHER ORDERED that Plaintiff's Motion to Waive Full Filing Fee (Doc. 12) is denied.
IT IS SO ORDERED.