Victor v. Louisiana State ( 2021 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REV. ERROL VICTOR, SR. CIVIL ACTION VERSUS NO. 20-3432 STATE OF LOUISIANA SECTION: “J”(3) REPORT AND RECOMMENDATION Plaintiff, Errol Victor, Sr., a state inmate, filed this federal civil action against the State of Louisiana pursuant to 42 U.S.C. § 1983.1 The State of Louisiana then filed a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure.2 Plaintiff thereafter filed two motions to voluntarily dismiss his lawsuit.3 The Federal Rules of Civil Procedure provide: (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including 1 Rec. Doc. 5. 2 Rec. Doc. 18. 3 Rec. Docs. 21 and 22. the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. … Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. Fed. R. Civ. P. 41(a). Because the State of Louisiana has filed only a Rule 12 motion to dismiss, plaintiff has an absolute right to dismiss his lawsuit. See Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (“[A] plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.”); see also Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 661 (5th Cir. 1979) (noting that a plaintiff’s right to a voluntary dismissal “is not cut off by a motion to dismiss”). RECOMMENDATION It is therefore RECOMMENDED that plaintiff’s motions for voluntary dismissal, Rec. Docs. 21 and 22, be GRANTED and that plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE. It is FURTHER RECOMMENDED that plaintiff’s remaining motions, Rec. Docs. 10 and 20, and the State of Louisiana’s motion to dismiss, Rec. Doc. 19, be DENIED AS MOOT. 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 (Sth Cir. 1996) (en banc). New Orleans, Louisiana, this day of May, 2021. DANA DOUGLAS UNITED STATES MAGISTRATE JUDGE