Opinion
C21-5659-TSZ-SKV
12-16-2021
ROBERT SOUZA, Plaintiff, v. RONALD HAYNES, et al., Defendant.
REPORT AND RECOMMENDATION
S. KATE VAUGHAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert Souza, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. On October 4, 2021, the Court granted Plaintiff's application to proceed in forma pauperis and his complaint was filed. See Dkts. 4 and 5. On the same date, this Court issued an Order declining to serve Plaintiff's complaint and granting him leave to file an amended complaint correcting certain specified deficiencies. Dkt. 6. On October 13, 2021, Plaintiff filed a “motion to voluntarily withdraw 1983 complaint” in which he seeks to voluntarily dismiss his complaint without prejudice and without payment of the filing fee. Dkt. 7.
By order dated October 25, 2021, the Court informed Plaintiff that because he had now formally requested, and been granted, in forma pauperis status, he would remain responsible for the filing fee even if he elected not to proceed with the action. Dkt. 8. However, given that Plaintiff would remain obligated to pay the filing fee whether or not he chose to proceed with the action, the Court deemed it appropriate to inquire of Plaintiff whether he indeed wished to have this action dismissed at this juncture, or whether he would prefer to proceed. Id. Accordingly, the Court directed that by November 15, 2021, Plaintiff should either file an amended complaint consistent with the Order declining to serve his original complaint which was issued by this Court on October 4, 2021, or he should advise the Court that he does, in fact, wish to dismiss this action. Id. The Court indicated that if Plaintiff failed to communicate his intention to the Court by the date set forth above, the Court would dismiss the action. Id.
Plaintiff failed to file an amended complaint or otherwise respond to the Court's order. In light of Plaintiff's failure to respond, the Court recommends that Plaintiff's motion for voluntary dismissal, Dkt. 7, be granted and the case be dismissed without prejudice.
Federal Rule of Civil Procedure 41(a)(1) governs procedures for voluntary dismissal of an action and provides:
(1) [A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... Unless otherwise stated in the notice of dismissal . . ., the dismissal is without prejudice....
(2) .. .Except as provided in Rule 41(a)(1) [above], an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.
Here, the complaint has not been served and Plaintiff may voluntarily dismiss this action as a matter of right, without the permission of the Court or the Defendants, at this stage.
Accordingly, the Court recommends that Plaintiff's motion to voluntarily dismiss, Dkt. 7, be GRANTED and the complaint be DISMISSED WITHOUT PREJUDICE. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on January 7, 2022 .