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ORDER RE: PLAINTIFF’S NOTICE

OF FORMAL WITHDRAWAL OF 

COMPLAINT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

STEVEN AVERY,

Plaintiff,

v.

HAROLD CLARKE, et al.,

Defendants.

CASE NO. C05-2002-JLR-MJB

ORDER RE: PLAINTIFF’S NOTICE

OF FORMAL WITHDRAWAL OF

COMPLAINT

Plaintiff is a state prisoner who is currently incarcerated at the Monroe Correctional Complex

in Monroe, Washington. Plaintiff initiated this action in November 2005, with the filing of a document

entitled “Petition for order to levy a Lien, and or Freeze or Seize all assets, Bank Accounts and

holdings held by Debtor.” (Dkt. No. 1.) In conjunction with his “petition,” petitioner submitted a

memorandum in support of his petition, and a notice of motion; and, the “petition” was placed on the

motion calendar for consideration on December 16, 2005. (Dkt. Nos. 2 and 3.) The noting date was

subsequently stricken as premature because plaintiff had yet to serve his pleadings on defendants. 

(Dkt. No. 4.)

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ORDER RE: PLAINTIFF’S NOTICE

OF FORMAL WITHDRAWAL OF 

COMPLAINT - 2

On January 4, 2006, the court received from plaintiff a proposed civil rights complaint together

with an application to proceed with this action in forma pauperis. Based upon these filings, this

action was construed as a prisoner civil rights action and was referred to the undersigned. 

After reviewing plaintiff’s civil rights complaint, and all of his attached exhibits, this Court

concluded that plaintiff had not stated a cognizable claim for relief. Accordingly, on March 1, 2006,

this Court issued a Report and Recommendation recommending that this action be dismissed, without

prejudice, for failure to state a claim upon which relief may be granted. (Dkt. No. 13.) On the same

date, this Court issued an Order granting plaintiff leave to proceed with this action in forma pauperis. 

(Dkt. No. 10.) In that Order, the Court directed the agency having custody of plaintiff to calculate

and forward to the Court an initial partial filing fee. (Id.) The Court further directed the agency

having custody of plaintiff to collect and forward subsequent payments until the entire $250 filing had

been paid. (Id.) 

On March 16, 2006, the court received a letter from plaintiff in which he states that he is

formally withdrawing his complaint. (Dkt. No. 14.) He also states, in relation to this Court’s Order

granting him in forma pauperis status, that “I strongly advise you against directing anyone to

calculate, collect and forward payment, for they nor you have absolutely no authority nor consent to

do so period.” (Id.) 

Because defendants have not made an appearance in this action, plaintiff is entitled to withdraw

his complaint without any further action by the Court. See Rule 41(a)(1), Federal Rules of Civil

Procedure. However, the withdrawal of his complaint does not relieve plaintiff of the obligation to

pay the filing fee. Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner who brings a civil action “is required

to pay the full amount of a filing fee.” The statute contains no exception to that requirement for cases

which are voluntarily dismissed. 

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ORDER RE: PLAINTIFF’S NOTICE

OF FORMAL WITHDRAWAL OF 

COMPLAINT - 3

Moreover, the record makes clear that plaintiff did, in fact, consent to the collection of

payments from his inmate account. On page four of his in forma pauperis application, plaintiff

specifically acknowledges his responsibility to pay the full $250 filing fee, and authorizes the agency

having custody of him to collect that fee. (See Dkt. No. 8 at 4.) Plaintiff’s objection to the collection

of the filing fee for this action is therefore without merit.

Based upon the foregoing, this Court does hereby ORDER as follows:

(1) The Clerk shall terminate this action pursuant to plaintiff’s notice of withdrawal of his

complaint. (Dkt. No. 14.)

(2) This Court’s Report and Recommendation (Dkt. No. 13) recommending dismissal of

this action is now moot and should therefore be STRICKEN from the district court’s calendar.

(3) The Clerk shall send copies of this Order to plaintiff and to the Honorable James L.

Robart.

DATED this 14th day of April, 2006.

AMONICA J. BENTON

United States Magistrate Judge

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