Simon v. Louisiana Department of Public Safety Corr

Full title: LONNIE B. SIMON, JR. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY CORRECTIONS…

Court: United States District Court, W.D. Louisiana

Date published: Oct 21, 2008

CIVIL ACTION NO. 2:08-1142, SECTION "P" (W.D. La. Oct. 21, 2008)

Opinion

CIVIL ACTION NO. 2:08-1142, SECTION "P".

October 21, 2008

REPORT AND RECOMMENDATION

C. HILL, Magistrate Judge

Before the court the Motion to Dismiss this a civil rights action which has been filed in forma pauperis by pro se plaintiff, Lonnie B. Simon, Jr., pursuant to 42 U.S.C. § 1983. [rec. doc. 6]. This matter has been referred to the undersigned magistrate judge for review, report, and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B).

By this Motion, plaintiff requests that this lawsuit be voluntarily dismissed because it is duplicative of another lawsuit he has previously filed against the same defendants. Rule 41(a) FRCP permits a plaintiff to voluntarily dismiss an action without prejudice before the opposing party serves either an answer or a motion for summary judgment.¹ The record reflects that none of the defendants have filed an answer, a motion for summary judgment or other responsive pleading herein. Accordingly;

1 Although Rule 41(a) permits dismissal without a court order upon the filing of a Notice of Dismissal, because the plaintiff's pleading has been construed and filed as a Motion to Dismiss, out of an abundance of caution, the undersigned recommends that this action be dismissed by court order.

IT IS RECOMMENDED that plaintiff's Motion to Dismiss [rec. doc. 6] be GRANTED and accordingly, this action be DISMISSED WITHOUT PREJUDICE.

Under the provisions of 28 U.S.C. § 636(b)(1)(C), the parties have ten (10) business days from receipt of this Report and Recommendation to file any objections with the Clerk of Court. Timely objections will be considered by the district judge prior to a final ruling.

FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY FROM ATTACKING ON APPEAL, EXCEPT UPON GROUNDS OF PLAIN ERROR, THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT COURT.