Opinion
Civil Action 6:20-cv-2749-MGL-KFM
12-09-2020
Leon Edwards, Plaintiff, v. James Parish, Travis Reese, O. Colbert, J. Brown, Dayshawn Johnson, and M. Cleveland, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the plaintiff's motion to dismiss defendant Travis Reese from this case (doc. 31). The plaintiff, a state prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights during his incarceration at Broad River Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983.
The plaintiff filed his complaint in this case on July 27, 2020, and service of process was authorized on September 21, 2020. Defendant Reese was served on October 21, 2020, and he timely filed an answer on November 11, 2020. On November 24, 2020, the plaintiff filed a motion to dismiss defendant Reese, stating that he “had reason to believe . . . that . . . Reese was present during the incident . . ., [but he] is now aware from newly discovered evidence that . . . Reese was no longer employed by SCDC on the date of the incident” (doc. 31). Accordingly, the plaintiff “moves the court to remove Travis Reese as a defendant on this pending case” (id.). The defendants have filed no opposition to the motion.
An action may be dismissed voluntarily by the plaintiff without order of the court by filing a notice of dismissal at any time before service by the adverse party of an answer or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1). However, once a defendant, like defendant Reese here, has answered or filed a motion for summary judgment, leave of court for a voluntary dismissal is required. Id. 41(a)(2). Unless the order states otherwise, such a dismissal is without prejudice. Id. Whether to grant such a motion is within this court's discretion. Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.1987). “The purpose of Rule 41(a)(2) is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced.” Id. (citations omitted). “In considering a motion for voluntary dismissal, the district court must focus primarily on protecting the interests of the defendant.” Id. (citations omitted).
Here, defendant Reese has only recently served an answer to the plaintiff's complaint, and he has filed no opposition to the plaintiff's motion to dismiss. Based upon the foregoing, the undersigned recommends that the plaintiff's motion to voluntarily dismiss defendant Reese from this case (doc. 31) be granted and that the dismissal be without prejudice.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).