Barkley v. Nash et al

Filing 26

ORDER granting 21 MOTION to Dismiss Case; denying as moot 11 MOTION to Dismiss. Plaintiff's case is dismissed without prejudice. Signed by Honorable Susan O. Hickey on May 9, 2017. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

PAUL ELI BARKLEY

v.

PLAINTIFF

Case No. 4:17-cv-04006

GUARD NASH, Miller County Detention
Center (“MCDC”); GUARD HENSLEY,
MCDC; GUARD CRUISE, MCDC;
GUARD CRANE, MCDC; GUARD
SHUMAKE, MCDC; and NURSE
LONI, MCDC

DEFENDANTS
ORDER

Before the Court is a Motion to Dismiss filed by Plaintiff.

ECF No. 21. Defendants

have not filed a response, and the time for response has passed. The Court finds this matter ripe
for its consideration.
On February 8, 2017, Plaintiff filed his pro se Complaint and Application to Proceed in
forma pauperis (“IFP”). ECF Nos. 1, 2. Defendants Nash, Hensley, Cruise and Crane filed their
Answer on March 6, 2017. ECF No. 10. On March 9, 2017, Defendant Loni filed a Motion to
Dismiss in lieu of filing an answer, which is currently pending before the Court. ECF No. 11.
Defendant Shumake was served on April 17, 2017 (ECF No. 22) and filed an Answer to the
Complaint on May 5, 2017. ECF No. 23.
On April 10, 2017, Plaintiff filed the instant motion. The motion states as follows: “I
would like to no longer pursue this Civil Case. I believe that god has plan for me in my life,
however if I continue with the case I feel I will be out of the will of god. I apologize and ask the
courts dismiss the case please.” ECF No. 21.

Federal Rule of Civil Procedure Rule 41(a)(1)(A)(i) allows a plaintiff to voluntarily
dismiss his action without prejudice and without a court order by filing “a notice of dismissal
before the opposing party serves either an answer or a motion for summary judgment.”
Defendant Shumake filed his answer to Plaintiff’s Complaint on May 5, 2017, which was after
Plaintiff filed the instant motion. Thus, the Court construes Plaintiff’s motion to dismiss his
claims against Defendant Shumake as a Notice of Voluntary Dismissal pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A)(i). Accordingly, the Court finds that Plaintiff’s claims against
Defendant Shumake should be dismissed without prejudice.
Defendant Loni filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) in lieu of filing an Answer to Plaintiff’s Complaint. “Because a motion to dismiss
under [Rule 12(b)(6)] is neither an answer nor a motion for summary judgment, its filing
generally does not cut off a plaintiff's right to dismiss by notice.” In re Bath & Kitchen Fixtures
Antitrust Litig., 535 F.3d 161, 166 (3d Cir. 2008). The Court, thus, interprets Plaintiff’s motion
to dismiss his claims against Defendant Loni as a Notice of Voluntary Dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i). Accordingly, the Court finds that Plaintiff’s
claims against Defendant Loni should be dismissed without prejudice.
Defendants Nash, Hensley, Cruise and Crane filed an answer to Plaintiff’s Complaint
prior to the filing of the instant motion. “Rule 41(a)(2) of the Federal Rules of Civil Procedure
governs the issue of voluntary dismissal when the request for dismissal comes after an answer or
motion for summary judgment.” Gray v. Burlington N. Santa Fe Ry. Co., No. 3:09-CV-00010,
2011 WL 12828516, at *1 (E.D. Ark. Mar. 15, 2011). As a result, the Court construes Plaintiff’s
motion as to the aforementioned Defendants as a Motion for Voluntarily Dismissal pursuant to
Rule 41(a)(2).

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Rule 41(a)(2) provides that “an action shall not be dismissed at the plaintiff's instance
save upon order of the court and upon such terms and conditions as the court deems proper.”
The Eighth Circuit has established the following four factors to be considered when determining
whether to grant a motion to voluntarily dismiss pursuant to Rule 41(a)(2): (1) the defendant’s
effort and the expense involved in preparing for trial; (2) excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action; (3) insufficient explanation of the need to
take a dismissal; and (4) the fact that a motion for summary judgment has been filed by the
defendant. Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987).
In the present case, the Court finds that the first factor is met as Defendants have not
expended significant effort and expense in preparing for trial at this stage of the litigation.
Regarding the second factor, the Court has not been presented with any evidence to support a
finding that Plaintiff has excessively delayed his prosecution of the action. As a result, the
second factor supports granting Plaintiff’s motion. The Court further finds that the third factor is
satisfied as Plaintiff has sufficiently explained his need to dismiss this action. Lastly, the fourth
factor supports granting Plaintiff’s motion as no motion for summary judgment has been filed by
any Defendant. In conclusion, the Court finds that a balance of the factors weighs in favor of
granting Plaintiff’s Rule 41(a)(2) motion to dismiss his claims against Defendants Nash,
Hensley, Cruise and Crane.
The last issue the Court must address is whether Plaintiff’s dismissal pursuant to Rule
41(a)(2) is considered to be with or without prejudice. Plaintiff’s motion fails to specify whether
his request is for dismissal with or without prejudice.

“[I]f the plaintiff either moves for

dismissal without prejudice or fails to specify whether the request is for dismissal with or
without prejudice, the matter is left to the discretion of the court. The trial court may grant a

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Rule 41(a) dismissal without prejudice or may require that the dismissal be with prejudice.” 9
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §
2367 (2d ed. 1984 & Supp. 2008). Upon consideration, the Court finds that dismissal without
prejudice is appropriate.
In conclusion, the Court finds that Plaintiff’s Motion to Dismiss (ECF No. 21) is
GRANTED. Accordingly, the Court finds that Plaintiff’s Complaint should be and hereby is
DISMISSED WITHOUT PREJUDICE. As a result of the dismissal of Plaintiff’s Complaint,
Defendant Loni’s Motion to Dismiss (ECF No. 11) is DENIED AS MOOT. The Clerk of Court
is hereby directed to close Plaintiff’s case.
IT IS SO ORDERED, this 9th day of May, 2017.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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