Goodwin v. Washington (INMATE 2)

Filing 21

RECOMMENDATION of the Magistrate Judge that: (1) plaintiff's 20 MOTION to Dismiss be granted; (2) this case be dismissed without prejudice; (3) no costs be taxed. Objections to R&R due by 1/22/2009. Signed by Honorable Terry F. Moorer on 1/9/09. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ K E R V IN GOODWIN, #168 193 Plaintiff, v. K E L V IN WASHINGTON, COI, D e f e n d a n t. ____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n January 7, 2009 Plaintiff filed a Motion to Dismiss which the court considers as a request for voluntary dismissal without prejudice pursuant to Rule 41(a), Federal Rules of C iv il Procedure. Plaintiff requests dismissal of the complaint in order to present his claims initially to the state courts.1 Upon consideration of Plaintiff's motion to dismiss, the court c o n c lu d e s that the motion is due to be granted. Furthermore, the court concludes that this c a se should be dismissed without prejudice. See Rule 41(a)(2), Federal Rules of Civil P rocedu re. Dismissal without prejudice pursuant to Rule 41(a)(2) at the insistence of Plaintiff is c o m m i t te d to the sound discretion of this court, and absent some plain legal prejudice to D e f e n d a n t, denial of the dismissal constitutes an abuse of this court's discretion. McCants * * * * * 2:08-CV-531-TMH (WO)

Plaintiff references the Prisoner Litigation Reform Act ("PLRA") in support of his request for dismissal of the instant action.

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v . Ford Motor Company, Inc., 781 F.2d 855 (11 th Cir. 1986). Simple litigation costs, in c o n v e n ien c e to Defendant, and the prospect of a second or subsequent lawsuit do not constitute clear legal prejudice. Id. See also Durham v. Florida East Coast Railway C o m p a n y , 385 F.2d 366 (5 th Cir. 1967). T h e court has carefully reviewed the file in this case and determined that even if D e f en d a n t was given an opportunity to file a response to Plaintiff's motion to dismiss, he w o u ld not be able to demonstrate the existence of clear legal prejudice. Consequently, the c o u rt concludes that this case should be dismissed without prejudice on the motion of P l a in tif f . C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's Motion to Dismiss (Doc. No. 20) be GRANTED. 2 . This case be DISMISSED without prejudice. 3. No costs be taxed herein. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before January 22, 2009. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable.

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F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. Done, this 9 th day of January 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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