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Morgan v. United States

United States District Court, W.D. Oklahoma

January 17, 2019

DAVID BRIAN MORGAN, ERNEST DRAPER, ERIC LUCAS, KENNETH JOHNSON, MARK SCHEMM, DANNY ARMSTRONG, ERNEST MONCADA, LUTHER BARNETT, and CLEVE BILLINGS, Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         Plaintiffs-state prisoners appearing pro se[1]-bring this action under 42 U.S.C. § 1983. Doc. 1.[2] 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.

         For the 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. Doc. 8.

         Plaintiffs 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.”[3] Doc. 9, at 1.

         Because 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, [4] 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.[5]

         Recommendation and notice of right to object.

         For the reasons stated above, it is recommended that Plaintiffs' motion, Doc. 9, be granted and that this action be dismissed without prejudice to refiling.

         The 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).

         This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.

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Notes:

[1] The court construes Plaintiffs' pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

[2] This report cites court documents by their CM/ECF designation and pagination and, unless otherwise indicated, quotations are verbatim.

[3] 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 ...


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