Opinion
Case No. 2:11-cv-399
02-11-2015
Benjamin Hendricks, Plaintiff, v. Jeffrey Hazzard, et al., Defendants.
OPINION AND ORDER
This is a prisoner civil rights case in which Plaintiff is proceeding pro se. Plaintiff requested that the Court take judicial notice of certain actions he took in this case. ECF No. 122. Magistrate Judge Kemp issued a report and recommendation ("R&R") construing Plaintiff's motion to take judicial notice as a motion for voluntary dismissal of the case without prejudice and recommending the Court grant Plaintiff's motion with conditions. ECF No. 124. Defendants have objected. ECF No. 126. For the following reasons, the Court overrules Defendants' objection and adopts the R&R.
I. BACKGROUND
On May 15, 2014, Plaintiff apparently mailed to this Court a motion to voluntarily dismiss his case without prejudice. The motion was never filed on the docket, however, and Defendants continued to litigate the case. That continued litigation prompted Plaintiff to eventually request that the Court take judicial notice of the fact that he previously mailed his motion to voluntarily dismiss. ECF No. 122. He also seeks judicial notice of the fact that the Clerk's office received the document, time stamped it, and that the case was therefore deemed closed as of the date of mailing. Id. Plaintiff questions why Defendants have continued litigating the case given that it is closed and reiterates his request for an order from the Court dismissing the case without prejudice.
The R&R issued by Magistrate Judge Kemp notes that the exhibit to Plaintiff's motion confirms that his motion was mailed and time stamped by the Clerk's office but, curiously, was never filed on the docket. R&R 1, ECF No. 124. Magistrate Judge Kemp thus construed Plaintiff's motion to take judicial notice as the motion for voluntary dismissal without prejudice that was never actually filed.
Magistrate Judge Kemp concluded that Plaintiff's belief that his case was closed on May 15, 2014, the date he mailed the motion, is incorrect. Citing Federal Rule of Civil Procedure 41(a)(1), he explained that Plaintiff is not automatically entitled to a voluntary dismissal without prejudice because Defendants have filed an answer and motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A)(i). Rather, at this stage of the proceeding, dismissal without prejudice is within the Court's discretion. Fed. R. Civ. P. 41(a)(2). Magistrate Judge Kemp recommended granting Plaintiff's motion on the condition that any re-filing of the action be conditioned upon Defendants' ability to seek recovery of any costs that they incurred in connection with this action that will be incurred again in connection with any re-filed action. R&R 6, ECF No. 124.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(2) provides that "[w]ithin 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
III. ANALYSIS
Defendants object to the recommendation to dismiss, without prejudice, Plaintiff's complaint because in addition to the claims still pending, the complaint contains a use of force claim against Defendant Hazzard which was previously dismissed for failure to exhaust administrative remedies. Defendants argue that the R&R's recommendation to dismiss the complaint without prejudice, including the previously-dismissed use of force claim, was contrary to law. They argue the use of force claim was dismissed with prejudice and that Plaintiff cannot now use a voluntary dismissal to resurrect that previously dismissed claim.
"Under the PLRA, a dismissal for failure to exhaust nonjudicial remedies is without prejudice." Morris v. Newberry Corr. Facility, No. 11-10938, 2013 WL 865540, at *2-3 (E.D. Mich. Feb. 11, 2013) ("Whether the Court treats Defendant's exhaustion argument as a motion for summary judgment or an unenumerated 12(b) motion, the result will be the same: if granted, the dismissal will be without prejudice . . . .") (citing Boyd v. Corr. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2006); McCloy v. Corr. Med. Servs., 794 F. Supp. 2d 743, 751 (E.D. Mich. 2011)), report and recommendation adopted by 2013 WL 847520; see also Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (dismissing unexhausted claims without prejudice for failure to exhaust); Bell v. Konteh, 450 F.3d 651, 654 n.4 (6th Cir. 2006) ("The district court did not specify whether the dismissal was with or without prejudice. It is well established, however, that the appropriate disposition of an unexhausted claim under the PLRA is dismissal without prejudice.") (citations omitted)); Adams v. Smith, 166 F. App'x 201, 204 (6th Cir. 2006). Thus, the R&R's recommendation to dismiss Plaintiff's complaint without prejudice, even as to the use of force claim, was not contrary to law.
Neither the R&R nor the Opinion and Order adopting the R&R stated that Plaintiff's use of force claim would be dismissed with prejudice. ECF Nos. 61, 74. To the extent the Court's silence on the issue suggested an intent to dismiss the claim with prejudice, the Court revises its prior Order pursuant to Federal Rule of Civil Procedure 54(b) to clarify that, consistent with the law in this circuit, the use of force claim is dismissed without prejudice for failure to exhaust.
Accordingly, Defendants' objections are OVERRULED, the R&R is ADOPTED, and Plaintiff's complaint is dismissed without prejudice subject to the conditions outlined in the R&R. The Clerk shall terminate ECF Nos. 121, 122, and 124 from the Civil Justice Reform Act Motions Report.
IT IS SO ORDERED.
/s/ _________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT