Smith v. Donley County

Full title: BENJAMIN FRANKLIN SMITH, PRO SE, Plaintiff, v. DONLEY COUNTY, TEXAS, ET…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Apr 21, 2004

2:03-CV-00412 (N.D. Tex. Apr. 21, 2004)

Opinion

2:03-CV-00412.

April 21, 2004

REPORT AND RECOMMENDATION OF PARTIAL DISMISSAL

CLINTON AVERITTE, Magistrate Judge

Before the Court is plaintiff's April 16, 2004, Motion to Dismiss filed in the above-referenced and numbered cause, by which plaintiff states he wishes to dismiss his claims with prejudice as to defendants JOYCE COURSON, LOYD McKNIGHT, NELL BARNHILL, FRANKIE MILLER, A.B. IRONS, DIANNA KNIGHT, WILLIAM HOMMEL, JERRY WOODARD, BELL DAVIS, MAXINE JONES, JAN SMITH, MILDRED PIERSON, and MARY LONGAN, in their official and individual capacities.

No answer or responsive pleading has been filed by proposed defendants¹ JOYCE COURSON, LOYD McKNIGHT, NELL BARNHILL, FRANKIE MILLER, DIANNA KNIGHT, WILLIAM HOMMEL, JERRY WOODARD, BELL DAVIS, JAN SMITH, and MARY LONGAN.

1 A.B. IRONS and MILDRED PEAIRSON have submitted Answers, and MAXINE JONES has made an appearance by filing a Motion to Dismiss.

Rule 41(a)(1), Federal Rules of Civil Procedure, provides, in relevant part, that a plaintiff may dismiss his suit at any time before an adverse party has served an answer or a motion for summary judgment, whichever occurs first. Concerning Rule 41(a)(1), the Fifth Circuit has written:

[Plaintiff] need do no more than file a notice of dismissal with the Clerk. That document itself closes the file. . . . . This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of court closing the file. Its alpha and omega was the doing of the plaintiff alone. He suffers no impairment beyond his fee for filing.

American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963).

I. NON-ANSWERING DEFENDANTS

Per American Cyanamid Co., plaintiff's claims against the following defendants appear to have been dismissed with prejudice as of the filing of plaintiff's April 16, 2004, motion to dismiss: JOYCE COURSON, LOYD McKNIGHT, NELL BARNHILL, FRANKIE MILLER, DIANNA KNIGHT, WILLIAM HOMMEL, JERRY WOODARD, BELL DAVIS, JAN SMITH, and MARY LONGAN.

II. DEFENDANT JONES

The undersigned FINDS that, pursuant to American Cyanamid Co., defendant MAXINE JONES was also dismissed as a defendant on April 16, 2004, upon the filing of plaintiff's motion to dismiss. Plaintiff's motion to dismiss was filed of record prior to JONES' Motion to Dismiss, filed April 19, 2004. The Court further notes that JONES' motion contains no request for attorneys' fees or sanctions. However, defendant JONES shall have fourteen (14) days from the issuance of this Report and Recommendation in which she may object to this Finding.

III. DEFENDANTS PEAIRSON and IRONS

Answers were filed by MILDRED PEAIRSON and Mrs. A.B. IRONS, each acting pro se, on April 7, and April 8, 2004, respectively. Therefore, under American Cyanamid Co. and under Rule 41(a)(1), Federal Rules of Civil Procedure, it appears plaintiff cannot dismiss these defendants without submitting a stipulation of dismissal containing their signatures and evincing their consent to such dismissal. Nevertheless, the Court may dismiss plaintiff's claims against these defendants pursuant to 41(a)(2), Federal Rules of Civil Procedure, "upon such terms and conditions as the court deems proper." PEAIRSON and IRONS have each submitted a general denial of plaintiff's claims and the dismissal proposed by plaintiff would dispose of all his claims against these defendants and bar any attempt by him to assert these claims against PEAIRSON and IRONS again the future. Since no counterclaim has been asserted, it appears this outcome would be satisfactory to each defendant.

Defendants MILDRED PEAIRSON and A.B. IRONS shall have fourteen (14) days from the filing of this Report and Recommendation in which to sign and submit the attached Stipulation of Dismissal or file any Objection to the dismissal with prejudice of all of plaintiff's claims against them in both their individual and official capacities. Any failure to respond or object will be considered a consent to dismissal of all claims against them and will result in the dismissal of said claims.

The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff, and to each defendant appearing pro se and attorney of record by certified mail, return receipt requested. The Clerk shall also enclose a copy of the attached Stipulation of Dismissal with the mailings to defendants PEAIRSON and IRONS.

Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).

IT IS SO RECOMMENDED.

STIPULATION OF DISMISSAL

On April 16, 2004, plaintiff filed a motion to dismiss, with prejudice, his claims against various defendants in the instant cause.

I agree to let plaintiff SMITH dismiss all of his claims against me.