Noel v. Guerrero et al

Filing 88

OPINION AND ORDER granting 48 Motion Motion for Voluntary Dismissal. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT NOEL,
Plaintiff,
Case No. 10-13355
v.
Honorable Patrick J. Duggan
CARRIE GUERRERO, Detective, et al.,
Defendants.
/
OPINION AND ORDER
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on July 6, 2011.
PRESENT:

THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE

On August 24, 2010, Robert Noel (“Plaintiff”), a federal prisoner currently confined
at the Elkton Correction Institution in Lisbon, Ohio, filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983. He alleges that detectives fabricated stories concerning
drug purchases, ultimately leading to his arrest, prosecution, and conviction. On January
24, 2011, Plaintiff filed a motion to hold in abeyance his claims dealing with searches that
occurred on August 3, 2007 and July 24, 2008, as the appeal of his criminal conviction
remains pending in the Sixth Circuit Court of Appeals. This Court referred the motion to
Magistrate Judge Charles E. Binder.
On April 4, 2011, Magistrate Judge Binder filed his Report and Recommendation

(R&R). Magistrate Judge Binder advises that before a prisoner may recover damages in a
civil rights action that would render his conviction or sentence invalid, he must prove that
the conviction has been reversed, expunged, declared invalid by a state tribunal, or called
into question by issuance of a writ of habeas corpus. R&R 2 (citing Heck v. Humphrey,
512 U.S. 477, 487, 114 S. Ct. 2364, 2372 (1994)). Because a civil rights action cannot be
stayed to allow a prisoner to satisfy Heck’s requirement, Edwards v. Balisok, 520 U.S.
641, 649, 117 S. Ct. 1584, 1589 (1997), Magistrate Judge Binder recommends construing
Plaintiff’s motion to stay as a motion for voluntary dismissal. Magistrate Judge Binder
recommends that this Court dismiss Plaintiff’s action without prejudice to refiling, should
he prevail in the appeal of his conviction. At the conclusion of the R&R, Magistrate Judge
Binder advises the parties that they may seek review of the R&R within fourteen days of
service upon them. R&R 3. He further advises that “[f]ailure to file specific objections
constitutes a waiver of any further right of appeal.” Id. (citing Thomas v. Arn, 474 U.S.
140, 106 S. Ct. 466 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th
Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981)).
The Court received timely objections from Defendants Russell Perry and Kenneth
Sasse, who were each appointed to represent Plaintiff during his criminal trial. They assert
that they have filed motions to dismiss or for summary judgment that do not rely on Heck.
Perry and Sasse contend that they did not act under color of state law for purposes of §
1983, and that Plaintiff has not made allegations sufficient to state a conspiracy claim
under § 1985. Perry argues that if Plaintiff succeeds in appealing his conviction and
refiles this action, Defendants would be required to contest meritless claims a second time.
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Plaintiff filed an objection to the R&R on June 17, 2011. Plaintiff asserts that he was
not served with the R&R, and only learned of it through the objections filed by Defendants
Perry and Sasse. Although the R&R contains a certificate of service indicating that it was
mailed to Plaintiff, the Court will presume that Plaintiff did not receive it, and therefore
addresses Plaintiff’s objection. Plaintiff objects to Magistrate Judge Binder’s conclusion
that Heck bars this action. Plaintiff argues that his claims also involve a search performed
on September 4, 2008, and he has not been convicted of any crimes relating to this search.
Plaintiff contends that he should be permitted to continue his suit with respect to these
claims.
Defendants Campbell, Larrison, Rice, Uribe, and Deasy filed a response to Plaintiff’s
objections on July 1, 2011, arguing that the proposed bifurcation of claims is inappropriate
because the requested damages arise from Plaintiff’s allegedly unlawful arrest, conviction
and incarceration. The Court agrees. Plaintiff essentially seeks compensation for his
allegedly unlawful conviction, but he may not raise this claim until the conviction is
reversed, expunged, declared invalid by a state tribunal, or called into question by issuance
of a writ of habeas corpus. Heck, 512 U.S. at 487, 114 S. Ct. at 2372 (1994). The relief
sought by Plaintiff does not readily permit a bifurcation of claims. The Court therefore
rejects Plaintiff’s objection and construes his motion as a motion to voluntarily dismiss.
Federal Rule of Civil Procedure 41(a) governs a motion to voluntarily dismiss a suit.
The plaintiff may dismiss his action without a court order if he files a notice of dismissal
before his opponent serves either an answer or a motion for summary judgment, or if all
parties stipulate to dismissal. Fed. R. Civ. P. 41(a)(1). Otherwise, a plaintiff may only
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dismiss his action by seeking an order from the Court. Fed. R. Civ. P. 41(a)(2). The Court
has discretion in determining whether to grant dismissal under Rule 41(a)(2). Grover by
Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). “Generally, an abuse of
discretion is found only where the defendant would suffer ‘plain legal prejudice’ as a
result of a dismissal without prejudice, as opposed to facing the mere prospect of a second
lawsuit.” Id.
In determining whether a defendant will suffer plain legal prejudice, a court
should consider such factors as the defendant’s effort and expense of
preparation for trial, excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation for the need to take
a dismissal, and whether a motion for summary judgment has been filed by the
defendant.
Id.
Because Defendant Perry filed his motion for summary judgment before Plaintiff
filed his motion for voluntary dismissal, Rule 41(a)(2) governs Plaintiff’s motion. The
Court finds no plain legal prejudice that would result here. It does not appear that Plaintiff
has engaged in tactics to delay the resolution of his claims. As for diligence, while
Plaintiff filed an action that appears to be barred by Heck, he has also attempted to remedy
this issue by requesting a stay in the proceedings. The need for dismissal has been
explained, as Plaintiff specifically noted his pending appeal. Although Defendants have
prepared dispositive motions, there is no indication that their effort has been so extensive
as to establish plain legal prejudice. Because the greatest apparent burden on Defendants
is the prospect of a second suit if Plaintiff prevails in his appeal, the Court believes that
Plaintiff’s motion should be granted.

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The Court is aware that dismissal without prejudice potentially burdens Defendants,
who may be required to defend against Plaintiff’s claims a second time. Rule 41 addresses
this burden. If a plaintiff who dismissed a previous action files a new action based on or
including the same claim against the same defendant, the Court may require the plaintiff to
pay the costs of the action and stay the proceedings until the plaintiff has complied. Fed.
R. Civ. P. 41(d). Application of this Rule can ensure that Defendants bear the expense of
defending against Plaintiff’s claims only once.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for voluntary dismissal is GRANTED, and
Plaintiff’s action is DISMISSED WITHOUT PREJUDICE.
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Kenneth G. Galica, Esq.
Erik A. Grill, Esq.
Amy L. Lusk, Esq.
Monika L. Sullivan, Esq.
Laura A. Sagolla, Esq.
Jamie H. Nisidis, Esq.
Patrick D. Filbin, Esq.
Jonathan S. Ludwig, Esq.
Robert Noel, #42345-039
Elkton Federal Correctional Institution
P.O. Box 10
Lisbon, OH 44432

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