Opinion
Civil Action 1:21-CV-550
08-01-2023
DAVONTAY JOHNSON v. UNKNOWN PRISON STAFF, et al.,
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ZACK HAWTHORN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Davontay Johnson, an inmate confined at the Estelle Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Patricia Banks, Donna Jones, Jajuan Davis, Marissa Velazco, William Ayer, and K. Smith.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendation for the disposition of the case.
Procedural Background
In a Response to a Motion to Dismiss filed by Defendants Patricia Banks and Donna Jones pursuant to Federal Rule of Civil Procedure 12(b)(5), Plaintiff states it was his intent to not serve Defendants Jajuan Davis, Marissa Velazco and William Ayer as “they were only doing what they were told to do by their supervisors.” Response to Motion to Dismiss (doc. # 55). At that time, Plaintiff offered no explanation as to why he did not request a summons to serve Defendant K. Smith. In a Response to the Amended Motion to Dismiss filed by Defendants Patricia Banks and Donna Jones pursuant to Federal Rule of Civil Procedure 12(b)(5), Plaintiff clarified it was intent to only serve Defendants Patricia Banks and Donna Jones. Response to Amended Motion to Dismiss (doc. # 59). The court liberally construes this a motion to voluntarily dismiss his claims against Defendants Jajuan Davis, Marissa Velazco, William Ayer, and K. Smith under Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Analysis
A plaintiff has an absolute right to voluntarily dismiss an action without a court order if the plaintiff files “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment” or “a stipulation of dismissal signed by all parties who have appeared.” FED. R. CIV. P. 41(a)(1)(A)(i)-(iii); see Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977). Plaintiff has not served these defendants and thus there has been no opportunity for these defendants to file an answer in this case. Plaintiff's claims against Defendants Jajuan Davis, Marissa Velazco, William Ayer, and K. Smith should be dismissed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) without prejudice.
Recommendation
Plaintiff's claims against Defendants Jajuan Davis, Marissa Velazco, William Ayer, and K. Smith should be dismissed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) without prejudice.
Objections
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(c).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen (14) days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.