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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID EUGENE TURNER,

Plaintiff,

vs. Case No. 4:10cv193-MP/WCS

SHERON WELLS, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Before me is Plaintiff's motion for voluntary dismissal. Doc. 11. Plaintiff was

already granted in forma pauperis status, doc. 4, and submitted an initial partial filing

payment of $20.00, doc. 5, although he was directed to pay $27.17 by June 25, 2010. 

Doc. 4. I reviewed Plaintiff's case and pointed out the difficulties with this civil rights

case in light of Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841, 36 L. Ed.

2d 439 (1973) and Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed.

2d 383 (1994). Plaintiff now acknowledges that submission of this case was premature. 

Doc. 11. 
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Plaintiff has requested, however, not just to dismissal this case, but asks that it

"be put on hold until the time" that a ruling is entered in separate litigation. Doc. 11. 

That is not possible. The Court has no authority to stay this case so that administrative

remedies or exhaustion can be pursued. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct.

1584, 137 L. Ed. 2d 906 (1997). In Edwards v. Balisok, the Supreme Court concluded

that the district court had improperly stayed the inmate’s civil rights case while he

"sought restoration of his good-time credits." 520 U.S. at 649. Because § 1983 does

not contain a "judicially imposed exhaustion requirement . . . absent some other bar to

the suit, a claim either is cognizable under § 1983 and should immediately go forward,

or is not cognizable and should be dismissed." Id. Accordingly, Plaintiff’s case may not

be stayed while he awaits rulings in separate litigation such that this case could move

forward. 

Additionally, Plaintiff is requesting that money already submitted for this case,

and additional funds of $70.00 have been received, see docs. 8-10, 12, be "placed on

hold with" this complaint, and then permit the case to proceed, using the balance for this

case. Doc. 11. That request can also not be granted because, first, this case cannot be

stayed. Second, it is not possible to know in advance whether Plaintiff will, at some

unknown point in time in the future, be again entitled to in forma pauperis status. 

Plaintiff's motion for voluntary dismissal, doc. 11, should be granted pursuant to

FED. R. CIV. P. 41(a). Plaintiff is advised that this case cannot be stayed, and the

payments already made simply applied to a new case, if and when that case may be

initiated.

Case No. 4:10cv193-MP/WCS
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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

for voluntary dismissal, doc. 11, be GRANTED pursuant to FED. R. CIV. P. 41(a), and

.this case be DISMISSED without prejudice. 

IN CHAMBERS at Tallahassee, Florida, on August 3, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv193-MP/WCS