Kopp v. FCI Beckley

• Court: District Court, S.D. West Virginia
• Decided: September 11, 2018
• Docket: 5:18-cv-01212
• Status: Unknown

Opinion

FOR ITNH TEH SEO UUNTHITEERDN S DTIASTTERSI CDTIS OTFR WICETS CTO VUIRRGT INIA

BECKLEY DIVISION

JAMES C. KOPP, ) ) Plaintiff, ) ) v. ) Civil Action No. 5:18-001212 ) FCI BECKLEY, ) ) Defendant. )

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Plaintiff’s letter-form Motion to Voluntarily Dismiss Without Prejudice (Document No. 8), filed on September 10, 2018. By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 2.) FACTUAL AND PROCEDURAL HISTORY On August 6, 2018, Plaintiff, acting pro se and incarcerated at FCI Beckley, filed his letter-form Complaint in this matter claiming entitlement to relief pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971). (Document No. 1.) In his letter-form Complaint, Plaintiff states that prison staff are improperly interfering with his legal mail, denying him visitation with an “approved visitor,” and denying him contact with his attorney. (Id.) By Order entered on August 8, 2018, the undersigned directed Plaintiff to complete a form Complaint naming individual defendants and stating specific facts as to how each defendant violated his constitutional rights if Plaintiff wished to proceed with his Bivens claim. (Document No. 3.) Additionally, the Court ordered Plaintiff to either pay the filing and administrative fee ($400) or submit an Application to Proceed in Forma Pauperis or Without Prepayment of Fees. (Id.) On September 10, 2018, Plaintiff filed his above letter-form Motion to Voluntarily Dismiss Without Prejudice. (Document No. 8.) In his Motion, Plaintiff requests that the Court dismiss the above matter without prejudice. (Id.) Plaintiff explains that although he has “legally exhausted lesser means, only recently [he] found yet one more avenue that could be pursued to solve the problem and [he] cannot dispose of that avenue on the current deadline.” (Id.)

ANALYSIS Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a plaintiff may voluntarily 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[.]” Rule 41(a)(1)(B) states in pertinent part, as follows: Unless the notice of dismissal or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal – or state – court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” The purpose of the Rule respecting voluntary dismissal “is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). “A plaintiff’s motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the defendant.” Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). It is well established that prejudice to the defendant does not result from 2 the prospect of a second lawsuit. See Vosburgh v. Indemnity Ins. Co. of North America, 217 F.R.D. 384, 386 (S.D. W.Va. Sep. 12, 2003). In considering a Motion under Rule 41(a)(2), the District Court should consider the following relevant, but non-dispositive, factors: “(1) the opposing party’s effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary judgment is pending.” Id. Defendant has neither filed an Answer to Plaintiff’s letter-form Complaint nor otherwise pled. Accordingly, the undersigned respectfully recommends that Plaintiff’s Motion requesting

voluntary dismissal of this action be viewed under Federal Rule of Civil Procedure 41(a)(1)(A) and that the instant civil action be dismissed under Rule 41(a)(1)(A)(i) without prejudice. See e.g., Camacho v. Mancuso, 53 F.3d 48, 51 (4th Cir. 1995)(Rule 41(a)(1) “only allows a unilateral dismissal prior to a defendant’s filing an answer to the complaint or filing a motion for summary judgment.”) PROPOSAL AND RECOMMENDATION The undersigned therefore hereby respectfully PROPOSES that the District Court

confirm and accept the foregoing findings and RECOMMENDS that the District Court GRANT Plaintiff’s letter-form Motion to Voluntarily Dismiss Without Prejudice (Document No. 8), DISMISS Plaintiff’s letter-form Complaint (Document No. 1) without prejudice and remove this matter from the Court’s docket. The Plaintiff is hereby notified that this “Proposed Findings and Recommendation” is hereby FILED, and a copy will be submitted to the Honorable United States District Judge Irene C. Berger. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and

3 Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (filing of objections) and three (3) days (if received by mail) from the date of filing of this Findings and Recommendation within which to file with the Clerk of this Court specific written objections identifying the portions of the Findings and Recommendation to which objection is made and the basis of such objection. Extension of this time period may be granted for good cause. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing parties, District Judge Berger and this Magistrate Judge. The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Plaintiff, who is acting pro se, and transmit a copy to counsel of record. Date: September 11, 2018.

OmarJ.Aboulhosn s—s—S United States Magistrate Judge