Daniel v. Trowbridge

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

ALLEN DAVID DANIEL, Case No. 24-cv-10393 Plaintiff, Honorable Judith E. Levy Magistrate Judge Elizabeth A. Stafford v.

BETH TROWBRIDGE, et al.,

Defendants.

REPORT AND RECOMMENDATION TO GRANT PLAINTIFF’S REQUEST TO VOLUNTARILTY DISMISS THE ACTION (ECF NO. 35)

Plaintiff Allen David Daniel, a pro se parolee of the Michigan Department of Corrections, sues under 42 U.S.C. § 1983 for alleged constitutional violations arising from his incarceration at the Gus Harrison Correctional Facility. ECF No. 19. The Honorable Judith E. Levy referred the case to the undersigned for all pretrial matters under 28 U.S.C. § 636(b)(1). ECF No. 8. In May 2024, the Court granted defendants’ motion for a more definite statement and ordered Daniel to file an amended complaint correcting the defects described in the order. ECF No. 15. Daniel timely amended his complaint. ECF No. 19. Defendants moved to dismiss the new complaint under Federal Rules of Civil Procedure 8 and 41(b). ECF No. 20. The Court recommended that defendants’ motion be granted and

that the case be dismissed in its entirety. ECF No. 23. Judge Levy adopted in part the report and recommendation and dismissed all defendants except for Bradley. ECF No. 26. Judge Levy reasoned that

Bradley could not be dismissed from the action because he had not appeared or joined in the motion to dismiss. Id., PageID.384. Thus, Bradley is the sole remaining defendant in the action. The Court ordered Daniel to show cause why the case should not be

dismissed for lack of subject-matter jurisdiction given that the federal claims against Bradley lacked merit. ECF No. 34. The Court explained the pleading deficiencies in its order. Id. In response, Daniel seeks to

voluntarily dismiss the case without prejudice to allow him to consult an attorney and file a new complaint. ECF No. 35. Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may dismiss an action without a court order by filing “a notice of dismissal

before the opposing party serves either an answer or a motion for summary judgment.” Bradley has not answered. Nor has he been served, as the summons and complaint mailed by the U.S. Marshal Service was returned as undeliverable. ECF No. 33. Because Bradley has not answered or otherwise appeared in the case, dismissal without prejudice is proper.

Otherwise, “an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). If a defendant has asserted a counterclaim, “the action may be

dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication.” Fed. R. Civ. P. 41(a)(2). In determining whether the defendant will suffer legal prejudice from a voluntary dismissal depends in part on his “effort and expense” in

defending the suit. Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.1994). Dismissal under Rule 41(a)(2) is also proper. Bradley would not be prejudiced by a dismissal given that he has not appeared,

responded to the complaint, or expended any effort or expense in the litigation. The Court thus RECOMMENDS that Daniel’s request to voluntarily dismiss the action without prejudice be GRANTED.

s/Elizabeth A. Stafford ELIZABETH A. STAFFORD United States Magistrate Judge

Dated: September 10, 2025 NOTICE TO THE PARTIES ABOUT OBJECTIONS

Within 14 days of being served with this report and recommendation, any party may serve and file specific written objections to this Court’s findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party fails to timely file specific objections, any further appeal

is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And only the specific objections to this report and recommendation are preserved for appeal; all other objections are waived. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).

Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Within 14 days after service of

objections, any non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in

length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections lack merit, it may rule without awaiting the response. CERTIFICATE OF SERVICE

The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court’s ECF System to their email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on September 10, 2025.

s/Davon Allen DAVON ALLEN Case Manager