Devens v. Stern, M.D.

• Court: District Court, D. New Hampshire
• Decided: January 25, 1996
• Docket: CV-96-66-SD
• Status: Published

Opinion

Devens v. Stern, M.D. CV-96-66-SD 01/25/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James W. Devens

v. Civil No. 93-66-SD

Barry Stern, M.D.

O R D E R

Plaintiff pro se, James W. Devens, has moved to dismiss all

remaining claims in this litigation without prejudice. Document

74. Defendant objects to this motion, document 75, and moves for

involuntary dismissal pursuant to Rule 41(b), Fed. R. Civ. P.,1

document 76. In turn, plaintiff has objected to the defendant's

motion. Document 77.

1. Background

In this action, plaintiff has claimed that the defendant,

Barry Stern, M.D., violated his Eighth Amendment rights by

failing or refusing to provide needed medical treatment. By its

1Rule 41(b), Fed. R. Civ. P., provides in pertinent part that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." order of November 2 2 , 1995, document 71, the court granted plaintiff an extension to December 27, 1995, for the filing of

pretrial materials which complied with the reguirements of then

Local Rule 10(a) (l)A.-N.2

2. Discussion

As defendant correctly points out, the defendant's answer

having been filed, plaintiff is not entitled to a dismissal

without prejudice as a matter of right. Rule 41(a), Fed. R. Civ.

P.3 Absent agreement, plaintiff must obtain an order of the

district court, and the court may impose terms and conditions

upon such dismissal. 9 W right & M ille r, Federal Practice and Pro ce dur e,

C ivil 2 d § 2364, at 272-74 (West 1995).

Rule 41(b), supra note 1, permits the district court to

dismiss an action involuntarily on defendant's motion. Dismissal

as here sought, on the ground of failure to comply with the court

ruling (concerning filing of a pretrial statement), is described

2As of January 1, 1996, new Local Rules became effective in this federal district, but the court is applying the old rules, a copy of which was furnished to plaintiff as regards the pretrial materials reguired herein.

3In two parts. Rule 41(a), Fed. R. Civ. P., governs certain reguirements concerning dismissals of an action. Subsection (1) of the rule provides generally that when an answer has been filed a court order is reguired, and subsection (2) details the fact that such order of the court may include such terms and conditions as the court deems proper.

2 by a leading authority as "an amorphous ground that, if read

literally, would allow dismissal for the most trivial

noncompliance with the Federal Rules or court orders." 9W r i g h t &

M iller, supra, § 2369, at 331. And in the context of prisoner

litigation, such as this case concerns, the court should proceed

with caution to grant such a motion. Brown v. Frey, 806 F.2d 801

(8th Cir. 1986); Choudry v. Jenkins, 559 F.2d 1084 (7th Cir.

1976), cert, denied sub nom., Indiana, et al v. Choudry, 434 U.S.

997 (1977) .

Fairly read, plaintiff's objection to the defendant's motion

for involuntary dismissal demonstrates plaintiff's willingness to

agree to dismiss this action with prejudice if the defendant in

turn agrees to refrain from instituting any litigation against

plaintiff arising from the circumstances of this case.

Accordingly, it would appear that if defendant iswilling to

file, through counsel, a statement agreeing that no further

action will be brought against plaintiff by defendant as a result

of this matter, the court would be in a position to dismiss the

matter with prejudice. If, on the other hand, defendant does not

wish to file such a statement, then the case can once more be put

into posture for and proceed through trial.

Accordingly, the motions of the respective parties are

herewith denied. Defendant is granted 15 days within which to

3 file a statement indicating either that he will refrain from suit

against plaintiff or that he does not wish to exercise such

restraint. If the filing indicates defendant's willingness to

drop matters, then the court will enter an order dismissing this

action with prejudice.

If on the other hand defendant indicates through his filing

that he wishes the matter to proceed, the court will then grant

plaintiff a period of 20 days from the date of such filing to

comply with the court's prior orders that he file the reguisite

pretrial materials. Failure of plaintiff to comply with this

last extension will result in sanctions which will include

involuntary dismissal of this action.

3. Conclusion

For the reasons hereinabove indicated, the respective

motions of the parties have been denied, and the court has set

forth terms and conditions upon which the matter is to further

proceed.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 25, 1996

4 cc: James W. Devens, pro se John A. Lassey, Esq.