Opinion
22-3065-JWL-JPO
10-24-2022
ISMAEL COBOS BAUTISTA, Plaintiff, v. WARDEN HUDSON, et al., Defendants.
ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
Plaintiff, a detainee at USP Leavenworth in Leavenworth, Kansas (“USPL”), filed this pro se civil rights case alleging the denial of proper medical care at USPL. The Court granted Plaintiff leave to proceed in forma pauperis. The Court ordered the officials responsible for the operation of USPL to prepare a Martinez Report. The Report was filed on September 6, 2022. (Doc. 19.) The Report states that Plaintiff has failed to exhaust his administrative remedies regarding his claims. (Doc. 19, at 5-8.) On September 7, 2022, the Court entered an Order granting Plaintiff until October 6, 2022, to file a response to the Martinez Report. (Doc. 20). Plaintiff has failed to file a response to the Martinez Report.
This matter is before the Court on Plaintiff's Motion to Withdrawal (Doc. 23). Plaintiff indicates that he does not wish to continue this case and that he does not want the Court to take any further action on his behalf. (Doc. 23, at 1.) Plaintiff also asks the Court to stay any further payments from his prisoner account for his filing fee, based on his withdrawal of any further action in this case.
In this Court's Order (Doc. 7) granting Plaintiff's motion for leave to proceed in forma pauperis, the Court noted that “Plaintiff remains obligated to pay the remainder of the $350.00 filing fee” and that “[t]he agency having custody of plaintiff shall forward payments from plaintiff's account in installments calculated under 28 U.S.C. § 1915(b)(2).” Under 28 U.S.C. § 1915(b)(1) a prisoner bringing a civil action in forma pauperis “shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). Section (b)(2) provides that “[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account” and that “[t]he agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.” 28 U.S.C. § 1915(b)(2). Plaintiff has provided no factual or legal basis for this Court to relieve him of this statutory obligation.
It is unclear whether or not Plaintiff's desire to voluntarily dismiss this case was dependent upon him receiving a stay of his filing fee payments. Because the Court finds that Plaintiff remains obligated to make payments towards his filing fee as set forth above, the Court will give Plaintiff an opportunity to notify the Court if he no longer seeks to voluntary dismiss this case.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's request to stay payments towards his filing fee is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until November 14, 2022, in which to notify the Court if he no longer seeks to voluntarily dismiss this case. If Plaintiff fails to respond by this deadline, the Court will grant Plaintiff's Motion to Withdrawal (Doc. 23) and will dismiss this case without prejudice and without further notice.
IT IS SO ORDERED.