Sykes v. Gould et al
Filing
39
OPINION and ORDER GRANTING PLAINTIFF'S 29 MOTION TO VOLUNTARILY DISMISS THE COMPLAINT WITH PREJUDICE. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DORIAN TREVOR SYKES,
#31185-039,
Plaintiff,
vs.
Civil Action No. 21-CV-10514
HON. BERNARD A. FRIEDMAN
GOULD, et al.,
Defendants.
________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION
TO VOLUNTARILY DISMISS THE COMPLAINT WITH PREJUDICE
This matter is presently before the Court on plaintiff’s motion “to withdraw and
dismiss” his complaint with prejudice (ECF No. 29). Defendants have filed a response. Plaintiff
has not filed a reply, and the deadline for doing so has expired. Pursuant to E.D. Mich. LR 7.1(f)(2),
the Court shall decide this motion without a hearing.
This is a prisoner § 1983 case in which plaintiff alleges that defendants retaliated
against him for filing a prior lawsuit against them. Plaintiff now seeks to voluntarily dismiss his
complaint, with prejudice, on the grounds that “his claims are not likely to succeed.” Pl.’s Mot. at
1. In their response to this motion, defendants indicate that they do not object to the dismissal of
the complaint with prejudice, but they ask that the dismissal “be conditioned upon a finding that the
lawsuit was frivolous.” Defs.’ Resp. Br. at 10. Defendants argue that plaintiff’s claims are
demonstrably false. They request the frivolousness finding so that plaintiff may not file any further
lawsuits in forma pauperis (“IFP”). Defendants note that two of plaintiff’s previous lawsuits, filed
in district courts in Louisiana and Florida, have been dismissed as frivolous,1 and that if the instant
case were to be dismissed on this basis, then plaintiff would have “three strikes” against him and he
would be ineligible for IFP status in the future. See 28 U.S.C. § 1915(g).2
Voluntary dismissals are governed by Fed. R. Civ. P. 41(a)(2), which states that “an
action may be dismissed at the plaintiff’s request only by court order, on terms that the court
considers proper.” As another judge of this Court recently explained,
[a] court’s primary consideration in assessing a request under Rule
41(a)(2) is to protect the nonmoving party from unfair treatment.
Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). That
protection is needed when the nonmovant will suffer “some plain
legal prejudice other than the mere prospect of a second lawsuit.” Id.
In assessing whether “plain legal prejudice” is apt to occur, a court
considers the following factors: (1) the amount of time, effort, and
expense that the defendant has incurred in trial preparation; (2) any
“excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action”; (3) the sufficiency of the plaintiff’s
explanation for the need to dismiss; and (4) whether a defendant has
filed a motion for summary judgment. Id. (citations omitted). These
factors are merely a guide, and the plaintiff need not prevail on all of
them; nor is the district court required to make any findings on the
sufficiency of the plaintiff’s explanation for dismissal. Rosenthal v.
1
See Sykes v. Fed. Bureau of Prisons, No. 5:09-cv-389 (M.D. Fla. Dec. 1, 2009) (order
of dismissal stating that the complaint was dismissed “for abuse of the judicial process” and that
the dismissal “counts as a strike pursuant to 28 U.S.C. § 1915(g)”); and Sykes v. Fed. Bureau of
Prisons, No. 1:07-cv-01004 (W.D. La. Sept. 28, 2007) (judgment stating that complaint was
dismissed as frivolous and for failure to state a claim).
2
Section 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
2
Bridgestone/Firestone, No. 05-4451, 217 F. App’x 498, 502 (6th Cir.
2007) (internal quotation marks and citation omitted).
Oliver v. FCA US LLC, No. 19-CV-11738, 2021 WL 1614398, at *2 (E.D. Mich. Apr. 26, 2021).
In the present case, defendants are not at risk of suffering “plain legal prejudice” if,
as plaintiff proposes, the complaint is dismissed with prejudice. As the Second Circuit has noted,
when the complaint is dismissed with prejudice, defendants “ha[ve] been freed of the risk of
relitigation of the issues just as if the case had been adjudicated in [their] favor after a trial.”
Colombrito v. Kelly, 764 F.2d 122, 134 (2d Cir. 1985). Defendants need no additional security to
protect them from prejudice.
While defendants are understandably dismayed that plaintiff put them to the trouble
and expense of defending a questionable lawsuit, defendants cite no authority suggesting that the
Court may condition the voluntary dismissal of the complaint on a finding that the complaint is
frivolous. A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). As plaintiff’s complaint is not frivolous on its face, the Court
could reach the conclusion defendants request only if the facts were presented on summary judgment
or at trial and the Court were to determine, upon reviewing the record, that plaintiff’s claims lacked
any factual basis. The Court is unaware of any authority indicating that it may make such a finding
in the context of deciding a motion for voluntary dismissal.
Even if the Court could condition the dismissal of plaintiff’s complaint on a finding
that the complaint is frivolous, this would not saddle plaintiff with the “third strike” defendants seek.
Under § 1915(g), it is only “an action or appeal . . . that was dismissed on the grounds that it is
frivolous . . . ” that counts as a “strike.” In the present case, the complaint is being dismissed
pursuant to plaintiff’s motion for voluntary dismissal, not on the grounds that the complaint is
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frivolous.
For these reasons, the Court concludes that defendants are adequately protected by
a dismissal of the complaint with prejudice. The additional condition defendants request cannot be
granted under Fed. R. Civ. P. 41(a)(2). Accordingly,
IT IS ORDERED that plaintiff’s motion for voluntary dismissal is granted. The
dismissal is with prejudice.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: July 9, 2021
Detroit, Michigan
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of
record herein by electronic means or first class U.S. mail on July 9, 2021.
Dorian Trevor Sykes #31185-039
COLEMAN II U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 1034
COLEMAN, FL 33521
s/Johnetta M. Curry-Williams
Case Manager
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