Carlton v. Boyd et al (INMATE2)

Filing 19

REPORT AND RECOMMENDATIONS that plaintiff's 18 MOTION to Dismiss be GRANTED; that this case be DISMISSED without prejudice; that no costs be taxed herein. Objections to R&R due by 1/19/2010. Signed by Honorable Wallace Capel, Jr on 1/5/2010. (cc, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _______________________________ A L T O N JAY CARLTON, #263 361 P l a in tif f , v. L O U IS BOYD, WARDEN, et al., D e f e n d a n ts . _______________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n December 23, 2009 Plaintiff filed a motion to dismiss which the court considers a motion for voluntary dismissal without prejudice pursuant to Rule 41(a), Federal Rules of C iv il Procedure. Upon consideration of Plaintiff's motion to dismiss, the court concludes th a t the motion is due to be granted. Furthermore, the court concludes that this case should b e dismissed without prejudice. See Rule 41(a)(2), Federal Rules of Civil Procedure. Dismissal without prejudice pursuant to Rule 41(a)(2) at the insistence of Plaintiff is c o m m itte d to the sound discretion of this court, and absent some plain legal prejudice to D e f e n d a n ts , denial of the dismissal constitutes an abuse of this court's discretion. McCants 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 Defendants, and the prospect of a second or subsequent lawsuit do not constitute clear legal prejudice. Id. See also Durham v. Florida East Coast Railway * * * * * 2:09-CV-943-TMH (WO)

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 ts were given an opportunity to file a response to Plaintiff's motion to dismiss, they 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. 18) 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 Recommendation on or b e f o re January 19, 2010. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a i l u r e 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

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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 5 th day of January 2010.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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