Opinion
Civil Action 20-cv-02284-CMA-KLM
10-04-2022
HUNTER MELNICK, Plaintiff, v. TONYA GAMBLIN, CPO DOC, DEAN WILLIAMS, Exec Dir of Prisons DOC, BRODY, CPS DOC, SARA PHELPS, CPS DOC, and JOE WHITE, CPM, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Plaintiff's Motion for Voluntary Dismissal [#60].Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR2 72.1(c), this Motion has been referred to the undersigned for disposition. [#64]. The Court has reviewed the Motion [#60], the Response [#61], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons stated below, the Court respectfully recommends that the Motion for Voluntary Dismissal [#60] be denied, without prejudice to Plaintiff's dismissal of the case pursuant to either Fed.R.Civ.P. 41(a)(1) or (2).
“[#60]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
I. Analysis
By way of background, Plaintiff is proceeding pro se in this matter. On July 29, 2022, Plaintiff filed his Motion for Voluntary Dismissal [#60] in this case as well as five other of his cases. This Motion [#60], however, does not simply seek to dismiss the cases. Instead, Plaintiff stated that he would dismiss this case and the other cases “[i]f Defendants guarantee[d] Plaintiff's release on parole in September 2022.” Id. at 1. Further, Plaintiff requested that Defendants respond to that proposal. Id.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Defendants filed a Response [#61] on August 8, 2022. Defendants note therein that they do not have the ability or authority to release Plaintiff to parole. Id. at 2. Instead, the decision to grant parole or absolute release to an inmate incarcerated for an indeterminate sentence under the Act is vested within the sound discretion of the state parole board. Id. Further, to the extent that Plaintiff wants to voluntarily dismiss this case, Defendants state that Plaintiff may unilaterally file a notice dismissing this case under Fed.R.Civ.P. 41(a)(1)(A)(I). Id.
Turning to the analysis, the Court first notes that the relief requested in the Motion for Voluntary Dismissal [#60] - Plaintiff's release on parole in September 2022 at an apparent hearing that month - appears to be moot as that time frame has passed. Plaintiff's most recent Notice of Change of Address [#69] indicates that Plaintiff is still incarcerated. Second, Plaintiff cannot voluntarily dismiss a case premised on a condition that must be fulfilled by Defendants. See, e.g., Fed.R.Civ.P. 41. Accordingly, the Motion for Voluntary Dismissal [#60] is improper procedurally and should be denied.
Since it appears that no answer or motion for summary judgment has been filed in this case, Plaintiff is advised that he may voluntary dismiss his case without a court order through the filing of a Notice of Dismissal or a Stipulation of Dismissal signed by all the parties under Fed.R.Civ.P. 41(a)(1). Alternatively, he may move to dismiss the case pursuant to Fed.R.Civ.P. 41(a)(2). Under either rule, Plaintiff is not permitted to impose conditions on the dismissal.
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Motion for Voluntary Dismissal [#60] be denied, without prejudice to Plaintiff's dismissal of the case pursuant to either Fed.R.Civ.P. 41(a)(1)(ii) or (2).
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).