Opinion
CIVIL 1:22-CV-217
06-26-2023
JOSHUA PAYNE, Plaintiff, v. WALTER FAITH, et al., Defendants
Mariani Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Statement of Facts and of the Case
This is a pro se civil right action. (Doc. 1.) The plaintiff has now filed a document, which we construe as a motion to voluntarily dismiss this case, which “request[s] that this Court allow[] him to voluntary dismiss his complaint with prejudice.” (Doc. 34). For the reasons set forth below, it is recommended that this request be deemed a motion to voluntarily dismiss this case, the motion should be granted and this case dismissed.
II. Discussion
Rule 41(a)(1)-(2) of the Federal Rules of Civil Procedure provides as follows
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect.
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.F.R.Civ. P., Rule 41(a)(1)-(2). In this case given the plaintiff's stated intention to withdraw of this lawsuit with prejudice it is recommended that this motion to dismiss, (Doc. 34), be granted.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the plaintiff's motion to voluntarily dismiss this case, (Doc. 34) be GRANTED and this case be DISMISSED with prejudice.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.