Schlobohm v. Ash et al
Filing
114
MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Reconsider and Reopen Case Based on Voluntary Dismissal without Prejudice (Doc. 111 ) is denied. This case remains closed. Plaintiff's Motion to Reseal Document (Doc. 110 ) is denied . Plaintiff's Motion to Reconsider under Local Rule 7.3, Correct Misquotation, Correct Record and Seek Clarification Regarding Pro Se Access to Sealed Records via PACER (Doc. 112 ) is denied. Signed by District Judge John W. Lungstrum on 01/27/25. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW CHARLES SCHLOBOHM,
Plaintiff,
v.
CASE NO. 23-3014-JWL
DONALD ASH, et al.,
Defendants.
MEMORANDUM AND ORDER
This closed matter comes before the Court on three motions filed by Plaintiff. The first is
titled “Motion to Reseal Document” (Doc. 110). Plaintiff asks the Court to reseal Doc. 66. The
motion is denied as the document is currently sealed.
Plaintiff’s second motion is titled “Motion to Reconsider and Reopen Case Based on
Voluntary Dismissal without Prejudice” (Doc. 111). Plaintiff argues that his Motion to Withdraw
Complaint Without Prejudice (Doc. 93) should have immediately ended the case and deprived the
Court of jurisdiction, thereby nullifying any subsequent rulings of the Court. He argues that the
Court should have ignored or been powerless to grant his request (Doc. 99) filed three days later
to withdraw Doc. 93 and proceed with the case and should not have dismissed the case for failure
to state a claim.
However, this case had a long procedural history by the time Plaintiff filed his request to
voluntarily dismiss. The Court screened the Complaint under 28 U.S.C. § 1915A, entering an
order to show cause why the Complaint should not be dismissed for failure to state a claim (see
Doc. 9); gave Plaintiff six (6) extensions of time to respond to the show cause order (see Docs. 20,
29, 38, 40, 44, 47); screened Plaintiff’s Amended Complaint, ordering and receiving a Martinez
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Report (see Doc. 49); gave Plaintiff three (3) extensions of time to respond to the Martinez Report
(see Docs. 74, 76, 78); entered an order to show cause why the Amended Complaint should not be
dismissed for failure to state a claim (see Doc. 82); and gave Plaintiff four (4) extensions of time
to respond to the second show cause order (see Doc. 89), with the final order stating there would
be no further extension of the deadline (see Doc. 92). Plaintiff then filed his request to withdraw
his Amended Complaint without prejudice.
While a notice of voluntary dismissal often functions as Plaintiff argues, an exception has
developed in cases subject to screening under 28 U.S.C. § 1915A. In Large v. Beckham Cnty.
Dist. Ct., 558 F. App’x 827, 828–29 (10th Cir. 2014), the magistrate judge had screened the
plaintiff prisoner's complaint and issued a report and recommendation. Before the district court
considered the report and recommendation, the plaintiff filed a motion for voluntary dismissal
under Fed.R.Civ.P. 41(a)(1). The district court denied the motion because the magistrate had
already expended considerable time and effort in finding that the plaintiff failed to state a claim
and because the plaintiff was a “frequent filer.” The plaintiff appealed, and the Tenth Circuit held
as follows:
While Rule 41(a)(1)(A)(i) allows for voluntary dismissal without a
court order where the opposing party has not yet served an answer
or motion for summary judgment, Mr. Large cannot use it to avoid
the effect of a “strike” under 28 U.S.C § 1915(g) once his case was
already screened and found meritless. See 28 U.S.C. § 1915A(a), (b)
(directing court to screen and dismiss frivolous suits by prisoners
against government entities); Fed.R.Civ.P. 41(a)(1)(A) (stating
voluntary dismissal is subject to applicable federal statutes); Taylor
v. First Med. Mgmt., 508 F. App’x 488, 497 (6th Cir. 2012)
(unpublished); see also Hines v. Graham,320 F. Supp. 2d 641, 644
(N.D. Tex. 2004); Sumner v. Tucker, 9 F. Supp. 2d 641, 644 (E.D.
Va. 1998). But see Thomas v. Phillips, 83 F. App’x 661, 661-62 (5th
Cir. 2003) (unpublished).
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Large v. Beckham Cnty. Dist. Ct., 558 F. App’x 827, 828–29 (10th Cir. 2014) (unpublished); see
also Dreiling v. Henderson, 2005 WL 1705733, at *2 (D. Kan. 2005) (a prisoner may not avoid
the consequences of the “3–strike” provision in 28 U.S.C § 1915(g) by seeking dismissal of the
action without prejudice after the court has screened the complaint).
Plaintiff’s motion is denied. Plaintiff cannot use voluntary dismissal under Rule 41(a) to
avoid dismissal with prejudice and the effect of a strike under 28 U.S.C. § 1915(g).
Plaintiff’s third motion is titled “Motion to Reconsider under Local Rule 7.3, Correct
Misquotation, Correct Record and Seek Clarification Regarding Pro Se Access to Sealed Records
via PACER.” (Doc. 112). Plaintiff attempts to re-argue several issues and to dispute the Court’s
wording and findings in previously issued orders.
Because this case is closed, Plaintiff’s motion is denied. Nothing in this motion or in any
of Plaintiff’s filings warrants reopening this case. The case remains closed.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider and Reopen Case
Based on Voluntary Dismissal without Prejudice (Doc. 111) is denied. This case remains closed.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Reseal Document (Doc. 110) is
denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Reconsider under Local Rule 7.3,
Correct Misquotation, Correct Record and Seek Clarification Regarding Pro Se Access to Sealed
Records via PACER (Doc. 112) is denied.
IT IS SO ORDERED.
DATED: This 27th day of January, 2025, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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