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Coombs v. Stamper

United States District Court, M.D. Alabama, Northern Division

June 23, 2014

ROBERT L. COOMBS, Plaintiff,
v.
DENNIS M. STAMPER, et al., Defendants.

ORDER

MARK E. FULLER, District Judge.

In an order entered on June 2, 2014, this court directed the plaintiff to advise the court on or before June 16, 2014, whether he wishes to withdraw his instant civil action or whether he wishes to proceed in this action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).[1] Doc. No. 8 at 2. The court further directed the plaintiff that, if he wishes to proceed in this action under Bivens, he should, as previously ordered by the court (1) forward to the Clerk of the Court the sum of $3.27 on or before June 16, 2014, as an initial partial filing fee, and (2) thereafter, make monthly payments of 20 percent of each preceding month's income and/or funds credited to his account as payments towards the $350.00 filing fee.[2] Id. The court cautioned the plaintiff that his failure to comply with its orders would result in a recommendation by the magistrate judge that this case be dismissed. Id.

In response to the court's orders (Doc. No. 9), the plaintiff has filed a request asking this court to recharacterize his civil action as a petition for relief under the All Writs Act, 28 U.S.C., ยง1651(a)[3] - a request the plaintiff has previously made in this action, and which has previously been denied by this court. See Doc. Nos. 4 and 7. The court once again denies the plaintiff's request asking the court to recharacterize his civil action as a petition for relief under the All Writs Act.

The plaintiff has not paid the initial partial filing fee in this civil action, and indeed has indicated his wish not to be obligated for the payment of any filing fee. See Doc. No. 6 at 3. He states that if this court does not recharacterize his civil action as a petition for relief under the All Writs Act, he wishes to dismiss his action. Doc. No. 9 at 2. Under the circumstances, the court shall construe the plaintiff's response (Doc. No. 9) as a notice of voluntary dismissal of his action pursuant to Fed.R.Civ.P. 41(a)(1).

Accordingly, it is hereby

ORDERED that this action is DISMISSED without prejudice pursuant to Fed.R.Civ.P. 41(a)(1).


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