Opinion
Civil No. 3:17-CV-219
01-22-2019
ANDRE SMALLS, Plaintiff v. C.O. BRANT, et al., Defendants
(Judge Brann)
( ) AMENDED REPORT AND RECOMMENDATION
I. Factual Background
This is a pro se civil action brought by Andre Smalls, a state prisoner. There is an outstanding defense motion for summary judgment which has been pending in this case since May of 2018 without any response by Smalls. (Doc. 73.) Accordingly, once this case was referred to us on January 9, 2019, we entered an order which directed Smalls to respond to this summary judgment motion on or before January 31, 2019 and warned Smalls that a failure to respond could result in the dismissal of this action. (Doc. 90.)
Smalls has now responded to this order. (Doc. 91.) In his response Smalls states: "But look I don't care no more so just dismiss the case I'm tired of fight [sic] it!" (Id.) We construe this filing as tantamount to a request to voluntarily dismiss this action pursuant to Rule 41 and for the reasons set forth below we recommend that this request to voluntarily dismiss this case be granted.
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 the plaintiff has filed a request to voluntarily dismiss this case pursuant to Rule 41(a). Given the plaintiff's request to abandon this litigation, the plaintiff should be permitted under Rule 41 to voluntarily dismiss this case, and the court should enter an order pursuant to Rule 41(a)(2) dismissing this action.
Moreover, Smalls' latest filing makes it unmistakably clear that the plaintiff does not intend to oppose the defendants' motion for summary judgment. In this setting, where a plaintiff elects not to oppose a motion for summary judgment after being notified that the failure to oppose may result in the entry of summary judgment, the motion should be deemed unopposed and granted. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); see also Murphy v. Berdanier, 2015 WL 179051, at *1 (M.D. Pa. Jan. 14, 2015) (Rambo, J.) (deeming a summary judgment motion unopposed and granting the motion without a merits analysis due to the plaintiff's failure to file an opposition brief). These basic tenets of fairness also apply here and call upon us to grant the defendants' summary judgment motion (Doc. 73), which is unopposed.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the plaintiff's request to voluntarily dismiss this case, (Doc. 91), be GRANTED, that the defendants' summary judgment motion (Doc. 73), be deemed unopposed and GRANTED, and this case should be dismissed and closed.
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.
Submitted this 22d day of January 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge