Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TRACEY DAVID JOYNER CIVIL ACTION VERSUS NO. 19-00731 ROBERT C. TANNER, ET AL. SECTION: “F”(3)
REPORT AND RECOMMENDATION
Plaintiff, Tracey David Joyner, a state prisoner, filed this federal civil rights complaint claiming that he was choked by a fellow inmate. The Court ordered that issuance of summons be withheld while the matter was screened as required by federal law, [1] and a Spears hearing [2] was scheduled for February 19, 2019. However, plaintiff recently filed a motion asking that this matter be voluntarily dismissed. (Rec. Doc. 5.) The Court hereby construes that filing as a notice of dismissal.
Subject to exceptions not applicable in this case, the Federal Rules of Civil Procedure provide that “the plaintiff may dismiss an action without a court order by filing … a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment ….” Fed. R. Civ. P. 41(a)(1)(A)(i). When a pro se plaintiff seeks dismissal in a situation in which Rule 41(a)(1)(A)(i) would be applicable, the fact that he fails to cite that rule or correctly style the notice of dismissal is of no significance. Carter v. United States, 547 F.2d 258, 259 n.2 (5th Cir. 1977).
The United States Fifth Circuit Court of Appeals has noted that Rule 41(a)(1)(A)(i) “means what it says.” Id. at 259. That is, “a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.” Id. (emphasis added). When a *2 plaintiff has filed a proper notice of dismissal, a court has “no power or discretion to deny [plaintiff’s] right to dismiss or to attach any condition or burden on that right.” Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir. 1976).
In this lawsuit, no defendant has filed either an answer or a motion for summary judgment. Accordingly, pursuant to Rule 41(a)(1)(A)(i), plaintiff’s filing of his notice of dismissal has the effect of dismissing this lawsuit.
RECOMMENDATION It is therefore RECOMMENDED that plaintiff’s motion be GRANTED and that this civil action be DISMISSED WITHOUT PREJUDICE .
A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within fourteen (14) days after being served with a copy shall bar that 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, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this thirteenth day of February, 2019. __________________________________________ DANA M. DOUGLAS UNITED STATES MAGISTRATE JUDGE 2
[1] See 28 U.S.C. § 1915A.
[2] See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1989).