Clark v. Robertson et al

Filing 106

ORDER adopting in their entirety 104 the proposed findings and recommendations; denying 87 88 motions for summary judgment; granting 95 defendants' motion for summary judgment; denying 105 Clark's motion to dismiss; and dismissing Clark's amended complaint with prejudice. Signed by Chief Judge Brian S. Miller on 11/1/2018. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
SEYOUM ALI CLARK
ADC #120783
v.

PLAINTIFF
NO: 1:16-CV-00083 BSM-PSH

BRADLEY HOWARD ROBERTSON, et al.

DEFENDANTS

ORDER
The proposed findings and recommendations submitted by United States Magistrate
Judge J. Thomas Ray [Doc. No. 104] have been reviewed. After careful review of the record,
the proposed findings and recommendations are adopted in their entirety. Accordingly,
motions for summary judgment [Doc. Nos. 87 & 88] are denied, and defendants’ motion for
summary judgment [Doc. No. 95] is granted.
Clark filed a motion to dismiss without prejudice after filing his own motions for
summary judgment, after Judge Ray’s proposed findings and recommendations were
submitted, and after the defendants filed a motion for summary judgment. Doc. No. 105.
Voluntary dismissal of an action after a motion for summary judgment may be granted only
with a court order and on “proper” terms. Fed. R. Civ. P. 41(a)(2). The following are some
of the factors considered in determining whether the terms are proper: whether plaintiff has
presented a proper explanation for the desire to dismiss; whether defendants have expended
considerable effort and expense in preparing for trial; whether plaintiff exhibited diligence
in prosecuting the case; and whether defendants filed a motion for summary judgment.
Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir.1987); see also Hamm v.

Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999) (listing other factors
such as judicial waste and prejudice to the defendants). Furthermore, “[a] party may not
dismiss simply to avoid an adverse decision or seek a more favorable forum.” Cahalan v.
Rohan, 423 F.3d 815, 818 (8th Cir. 2005).
Clark’s proffered explanation for seeking dismissal is that he is unable to continue his
case while he undergoes mental examinations at the state hospital, pursuant to a state court
order. The state court order he submitted with his motion shows, however, that Clark is to
report to the state hospital on November 13, 2018. He has provided no evidence to show
why he would have been unable to file objections to Judge Ray’s findings and
recommendations by October 18, 2018. The record shows the defendants have expended
considerable effort and expense over almost two years of litigating this case, including filing
a motion for summary judgment. Clark also has prosecuted his case; however, the factors
weigh against him. Therefore, Clark’s motion to dismiss is denied. Clark’s amended
complaint [Doc. No. 9] is dismissed with prejudice.
IT IS SO ORDERED this 1st day of November 2018.
_________________________________
UNITED STATES DISTRICT JUDGE