Opinion
9:22-CV-00115-MAC
03-24-2023
JOHNNY BARRETT, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ZACK HAWHORN, MAGISTRATE JUDGE
The Plaintiff, Johnny Barnett, filed a complaint against the Commissioner of Social Security Administration on August 2, 2022. (Doc. No. 1.) This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. Pending is the Plaintiff's Motion to Dismiss. (Doc. No. 16.)
The complaint does not indicate the nature of Plaintiff's suit against the Commissioner.
A plaintiff may not dismiss an action without order of court when an adverse party has served an answer. FED. R. CIV. P. 41(A)(2). IN SUCH INSTANCE, THE ACTION CAN BE DISMISSED ONLY “UPON ORDER OF THE COURT AND UPON SUCH TERMS AND CONDITIONS AS THE COURT DEEMS PROPER.” Id. Here, the Defendant filed an answer on November 7, 2022. (Doc. No. 10.) The Plaintiff's motion to dismiss was filed on February 28, 2023. (Doc. No. 16.) Therefore, this action cannot be dismissed without leave of court.
Although the Plaintiff did not file a certificate of conference with his motion to dismiss, he represents that the motion is “unopposed,” and the Commissioner has not filed a response opposing dismissal. Consequently, the undersigned recommends granting the Plaintiff's motion, and this action should be dismissed without prejudice.
VI. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c), each party to this action has the right to file objections to this report and recommendation. Objections to this report must: (1) be in writing, (2) specifically identify those findings or recommendations to which the party objects, and (3) be served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1)(c) (2009); FED. R. CIV. P. 72(B)(2). A PARTY WHO OBJECTS TO THIS REPORT IS ENTITLED TO A de novo determination by the United States district judge of those proposed findings and recommendations to which a specific objection is timely made. See 28 U.S.C. § 636(b)(1) (2009); FED R. CIV. P. 72(B)(3).
A party's failure to file specific, written objections to the proposed findings of fact and conclusions of law contained in this report, within fourteen (14) days of being served with a copy of this report, bars that party from: (1) entitlement to de novo review by the United States district judge of the findings of fact and conclusions of law, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of any such findings of fact and conclusions of law accepted by the United States district judge, see Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, at 1428-29 (5th Cir. 1996) (en banc).