Oropallo v. Ackerman

Opinion

Oropallo v. Ackerman CV-93-209-SD 09/25/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles J. Oropallo

v. Civil No. 93-209-SD

Loran Ackerman, et al

O R D E R

This matter comes before the court on certain pending

motions.

1. Plaintiff's Motion to Dismiss Without Prejudice and Issue

Order to Defendants, document 44

Having completed the copying of his habeas corpus pleadings

from his word processor disks and having been granted additional

storage space to hold his legal materials, plaintiff moves to

dismiss this suit without prejudice. However, he seeks to

condition this dismissal on the issuance of a further order from

the court directing defendants to refrain from any future

interference with his legal materials.

The defendants object on the ground that the completion of

copying and the provision of additional storage space mandates

dismissal of the case with prejudice and without entry of further orders. Document 45. In response to the objection, plaintiff

points out that his complaint (Document 3, at 23) seeks money

damages. Document 46, at 1. Plaintiff suggests that if his

pending habeas corpus action is unsuccessful, there will probably

be no damages sustained, but if he succeeds in the habeas corpus

proceeding, he will claim entitlement to damages for "the

additional years of delay." Id. at I.1

The motion at issue is governed by Rule 41(a)(2), Fed. R.

Civ. P.2 Thereunder, dismissal without prejudice "should be

permitted . . . unless the court finds that the defendant will

suffer legal prejudice. Neither the prospect of a second suit

nor a technical advantage to the plaintiff should bar the

dismissal." Puerto Rico Maritime Shipping Auth. v. Leith, 668

F.2d 46, 50 (1st Cir. 1981) (citations omitted).

As there is nothing currently pending upon which this court

can act, as the circumstances at present do not permit the

1The court expresses no opinion on the damages argument. Suffice it to say, if the action is now dismissed without prejudice, any damage claims can be brought if indeed such damages accrue. The proper procedure in such matter is not to stay further proceedings, but to dismiss without prejudice.

2In general, when issue has been joined. Rule 41(a) (2) provides that "an action shall not be dismissed at the plaintiffs' instance save upon order of the court and upon such terms and conditions as the court deems proper. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice."

2 issuance of further orders,3 and as there is no prejudice to

defendants, the court will order dismissal of this litigation

without prejudice.

2. Motion for Miscellaneous Relief, document 46

By medium of a letter dated July 25, 1995, directed to the

clerk of this court, plaintiff seeks to have the word processor

disks remaining in custody of this court transmitted to his

father in Loudonville, New York. Treating the letter as a

"motion for miscellaneous relief," the court herewith grants

said motion and directs the clerk to transmit said disks to

plaintiff's father.

3. Conclusion

The court has granted in part plaintiff's motion to the

extent that this action is dismissed without prejudice. The

court has denied that part of the motion which seeks the issuance

at this time of an order preventing the defendants from

interference in the future with plaintiff's legal materials.

The court has granted plaintiff's reguest that the word

processor disks remaining in the custody of the court be

3Courts cannot issue advisory opinions grounded upon circumstances that may, or may not, occur.

3 transmitted to plaintiff's father in Loudonville, New York.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 25, 1995

cc: Charles J. Oropallo, pro se Lucy C. Hodder, Esq.