United States District Court, W.D. Oklahoma
DAVID BRIAN MORGAN, ERNEST DRAPER, ERIC LUCAS, KENNETH JOHNSON, MARK SCHEMM, DANNY ARMSTRONG, ERNEST MONCADA, LUTHER BARNETT, and CLEVE BILLINGS, Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
prisoners appearing pro se-bring this action under 42 U.S.C.
§ 1983. Doc. 1. Plaintiffs originally filed their action
in the United States District Court for the Southern District
of Indiana, and that court transferred the case to this
district. Docs. 3, 4. United States District Judge Timothy D.
DeGiusti has referred the matter to the undersigned
Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(b). Doc. 7.
action to proceed, this Court ordered each of the nine
Plaintiffs to either pay the $400.00 filing fee in accordance
with § 1914(a), (b), and LCvR 3.2, or each submit a
motion for leave to proceed in forma pauperis in accordance
with § 1915(a)(2) and LCvR 3.3, by January 31, 2019.
have now filed a motion stating that “Plaintiff's
again apologize to this court for the complete waist of time
and money. Ignorance of the law is no excuse, and we appear
to have our facts wrong. We asks this court for lattitude of
our lack of expierence and ask this court to dismiss this
action without prejudice, while we correct our understanding
of the rule of law and refile at a later
date.” Doc. 9, at 1.
Plaintiffs have not filed a notice of dismissal pursuant to
Fed.R.Civ.P. 41(a)(1)(A)(i) and the undersigned does not
liberally construe their motion as such, a court order is
required to dismiss this action. See Fed. R. Civ. P.
41(a)(2) (“[A]n action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper.”) However, the undersigned
notes that Defendants in this case have yet to be served-and
therefore have not filed an answer or a motion for summary
judgment. In light of that fact and finding no “legal
prejudice” to Defendants here,  the undersigned recommends
the court grant Plaintiffs' motion for voluntary
dismissal pursuant to Fed.R.Civ.P. 41(a)(2) and dismiss this
action without prejudice. Because Plaintiffs have stated
their plan to “refile at a later date, ” Doc. 9,
at 1, the undersigned notes that Plaintiffs' continued
filing in other districts and subsequent requests to withdraw
their cases once transferred to this Court may result in the
dismissal with prejudice of their claims or other filing
restrictions as this Court deems appropriate.
and notice of right to object.
reasons stated above, it is recommended that Plaintiffs'
motion, Doc. 9, be granted and that this action be dismissed
without prejudice to refiling.
undersigned advises the parties of their right to file an
objection to this Report and Recommendation with the Clerk of
Court on or before February 7, 2019, under 28 U.S.C. §
636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further
advises the parties that failure to file a timely objection
to this Report and Recommendation waives their right to
appellate review of both factual and legal issues contained
herein. Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991).
Report and Recommendation disposes of all issues referred to
the undersigned Magistrate Judge in the captioned matter.
 The court construes Plaintiffs'
pro se filings liberally. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
 This report cites court documents by
their CM/ECF designation and pagination and, unless otherwise
indicated, quotations are verbatim.
 Plaintiffs previously filed a §
1983 claim in the United States District Court for the
District of Delaware, which transferred the case to this
Court. See Draper v. United States, CIV-18-1065-C.
In a similar chain of events, once Plaintiffs were ordered to
each either pay the filing fee or submit a motion for ifp,
Plaintiffs instead filed a motion requesting that this Court
dismiss their case rather than proceeding with their claims
in this Court. The undersigned ...