Opinion
Civil Action No. 19-cv-01066-WJM-KLM
02-12-2020
ANDREW J. O'CONNOR, and CLIFF SMEDLEY, Plaintiffs, v. LAFAYETTE CITY COUNCIL, and ALEXANDRA LYNCH, Mayor, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff Cliff Smedley's ("Smedley") Motion to Dismiss Plaintiff'[s] Claim[s] by Court Order [#49] ("Smedley's Motion") and on Plaintiff Smedley and Defendants' Joint Motion for Dismissal With Prejudice of All Claims by Plaintiff Smedley as to the Defendants [#60] (the "Joint Motion"). With respect to Smedley's Motion [#49], Defendants filed a Response [#51] agreeing to the dismissal but opposing Defendant Smedley's request that the dismissal be without prejudice. Plaintiff Andrew J. O'Connor ("O'Connor") filed a Response [#54] opposing Smedley's Motion [#49] in full. The Joint Motion [#60], which was filed only eight days after Smedley's Motion [#49], requests dismissal of Plaintiff Smedley's claims with prejudice. Plaintiff O'Connor filed a Response [#67] in opposition to the Joint Motion [#60], and Defendants filed a Reply [#68]. Both Plaintiff Smedley and Plaintiff O'Connor proceed as pro se litigants. Because Plaintiff Smedley's later Joint Motion [#60] seeks dismissal with prejudice rather than without prejudice, his original Motion [#49] appears to be moot.
"[#49]" 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 Recommendation.
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigants' advocate nor should the Court "supply additional factual allegations to round out [the pro se litigants'] complaint or construct a legal theory on [their] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Joint Motion [#60] relies on Fed. R. Civ. P. 41(a)(2), which provides: "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Plaintiff O'Connor opposes the Joint Motion [#60] because he asserts that granting it would be "severely prejudicial" to him and because it is "contrary to the fair administration of justice." Response [#67] at 1. Except for highly unusual circumstances which are not at issue here, the Court is aware of no legal authority which prevents one plaintiff from dismissing all of his claims in a lawsuit while another plaintiff proceeds with his claims. Largely for the reasons stated in Defendants' Reply [#68], Plaintiff O'Connor's opposition to the Joint Motion [#60] is without legal basis. Most importantly, though, the Court notes that the dismissal would not affect Plaintiff O'Connor's claims against Defendants. Although Plaintiff O'Connor repeatedly says that he would be prejudiced, he does not provide any specificity as to how he would actually be prejudiced by dismissal of Plaintiff Smedley's claims.
Based on the foregoing,
The Court respectfully RECOMMENDS that the Joint Motion [#60] be GRANTED and that Plaintiff Smedley's claims against Defendants be DISMISSED with prejudice.
If this Recommendation is adopted, the Court notes that it's prior Recommendation [#48] will be moot to the extent it addresses claims asserted by Plaintiff Smedley. --------
The Court further RECOMMENDS that Smedley's Motion [#49] be DENIED as moot.
IT IS HEREBY 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).
Dated: February 12, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge