McMurry v. Stevenson et al

Filing 9

ORDER Granting 8 Motion to Voluntary Dismiss filed by John McMurry, 3 Motion for Substituted Service is Moot 7 and that Report and Recommendation is Accepted in Part and Rejected in Part and that the action is Dismssed without Prejudice Signed by District Judge Denise Page Hood. (LHac)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOHN McMURRY, Plaintiff, v. VERNON STEVENSON, et al., Defendants. _________________________________/ ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL OF ACTION, ORDER REGARDING REPORT AND RECOMMENDATION, AND ORDER DISMISSING ACTION WITHOUT PREJUDICE Magistrate Judge Charles Binder issued a Report and Recommendation dated September 29, 2010. On October 8, 2010, Plaintiff John McMurry filed a Motion to Voluntary Dismissal of Action. McMurry seeks to voluntarily dismiss his action without prejudice to allow him to fully cure the defects pointed out by the Magistrate Judge in his Report and Recommendation. McMurry indicates that none of the Defendants have been served in this matter. Rule 41(a) of the Rules of Civil Procedure provides that a plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A). As noted by the Magistrate Judge, the action is subject to the screening provisions under 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c)(1) given that McMurry is a prisoner and sought (and was granted) to proceed without prepayment of fees. The Magistrate Judge recommends in his Report and Recommendation that McMurry's Comlaint be dismissed with prejudice because the Complaint violates Fed. R. Civ. P. 8(a)(2) and the rules governing joinder of claims and defendants under Fed. R. Civ. P. 18 and 20. Case No. 10-13357 Honorable Denise Page Hood

Liberally construing and reviewing McMurry's Complaint, as required by Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court agrees with the Magistrate Judge that the Complaint violates Rule 8 and the rules governing joinder of claims and defendants under Rules 18 and 20. However, the Court will not dismiss the action with prejudice as recommended by the Magistrate Judge because McMurry is now seeking to dismiss the action without prejudice. The Court grants McMurry's request to dismiss the action without prejudice. In dismissing the action without prejudice, the Court makes no ruling on the effect of such dismissal, but notes Rule 41(a) states that a voluntary dismissal may operate as an adjudication on the merits. Fed. R. Civ. P. 41(a)(1)(A). Accordingly, IT IS ORDERED that Plaintiff's Motion to Voluntary Dismissal of Action (No. 8, 10/8/2010) is GRANTED. IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation (No. 7, 9/29/10) is ACCEPTED IN PART and REJECTED IN PART as noted above. IT IS FURTHER ORDERED that the Motion for Substituted Service (No. 3, 8/24/2010) is MOOT. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.

S/Denise Page Hood Denise Page Hood United States District Judge Dated: October 29, 2010 I hereby certify that a copy of the foregoing document was served upon John McMurray, Reg. No. 223416, Lakeland Correctional Facility, 141 First St., Coldwater, MI 49036 on October 29, 2010, by electronic and/or ordinary mail. S/William F. Lewis Case Manager

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