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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JOE TOMAS COKER,

Plaintiff,

v.

CHRISTINE GREGOIRE, et al.,

Defendants.

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CASE NO. C06-0068-JLR

REPORT & RECOMMENDATION

INTRODUCTION

Petitioner is a state prisoner who has filed a civil rights complaint under 42 U.S.C. § 1983.

The complaint has not been served on defendants. For the reasons below, the Court recommends

construing a recent letter from plaintiff as a motion to voluntarily dismiss this action, and granting

the motion.

PROCEDURAL HISTORY

On January 17, 2006, plaintiff submitted a civil rights complaint along with an application

for leave to proceed in forma pauperis. (Doc. #1). The Court granted the application but

declined to serve the complaint on defendants because the basis of the complaint was unclear.

(Doc. #10). Plaintiff was granted leave to amend the complaint, and was given 30 days in which

to file an amended complaint. (Id.)

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REPORT & RECOMMENDATION

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Plaintiff wrote the Court a letter requesting more time to file an amended complaint and

the Court granted an extension of time until May 1, 2006. (Doc. #13). On April 24, 2006,

plaintiff wrote to the Court again and this time announced that he would not be able to meet the

deadline because he had learned that his legal materials had been destroyed by the Department of

Corrections. (Doc. #15). Plaintiff further stated that he would need approximately 18 months to

reassemble all the materials which were destroyed. (Doc. #15 at 1).

DISCUSSION

Due to case management concerns, the Court cannot grant plaintiff an extension of 18

months’ duration. Therefore, the only alternative appears to be to allow plaintiff to voluntarily

dismiss this lawsuit now and refile it later when he has obtained the necessary documents.

Accordingly, the Court recommends construing plaintiff’s letter as a motion for voluntary

dismissal of this action under Fed. R. Civ. P. 41(a)(1). So construed, the motion should be

granted.

Plaintiff also writes in his letter that had he known his documents had been destroyed, he

would not have filed his complaint and incurred the financial obligation of repaying the $250 filing

fee, as he is required to do under the previous Order granting him leave to proceed in forma

pauperis. (Doc. #6). Because circumstances beyond plaintiff’s control have prevented him from

continuing to litigate this matter, the Court recommends that, in the interest of justice, plaintiff

should not be required to pay the remaining portion of the $250 filing fee imposed by the previous

Order. To relieve plaintiff of this financial burden, the previous Order granting him in forma

pauperis status should be vacated.

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CONCLUSION

For the foregoing reasons, the court recommends granting plaintiff’s motion to voluntarily

dismiss this action and vacating the previous Order granting plaintiff leave to proceed in forma

pauperis. A proposed Order is attached.

DATED this 28th day of April, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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