Smith v. Evert

Filing 4

ORDER Granting Plaintiff's 3 Motion to Dismiss Case. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH,
Plaintiff,
v.

Case No. 17-cv-12082
Judith E. Levy
United States District Judge

OFFICER EVERT,
Mag. Judge Patricia T. Morris
Defendant.
________________________________/
ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS CASE
[3]
On June 23, 2017, plaintiff Derrick Lee Smith commenced this action by
filing a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is a state
prisoner at the Michigan Reformatory in Ionia, Michigan where defendant Evert is
employed as a correctional officer. Plaintiff alleges in his complaint that Evert
retaliated against him by writing invalid prison misconduct tickets about him.
On July 19, 2017, before the Court could take any action in this case, plaintiff
moved to voluntarily dismiss his complaint. He states in his motion that he and
Evert resolved their conflict shortly after he filed his complaint.
Pursuant to Federal Rule of Civil Procedure 41(a)(2), a federal court may
dismiss an action at the plaintiff’s request “on terms that the court considers
proper,” and unless the order states otherwise, the dismissal is without prejudice.

The purpose of this rule “is to protect the nonmovant, here the defendant[], from
unfair treatment.” Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583
F.3d 948, 953 (6th Cir. 2009) (citing Grover by Grover v. Eli Lilly and 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.”
Grover, 33 F.3d at 718. In determining whether such prejudice would
result, courts typically consider “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.
Id.
Here, it does not appear that defendant Evert would suffer any prejudice as a
result of a dismissal of this case without prejudice. He has not been served with the
complaint, and he has not filed a response to the complaint or an appearance by
counsel. Furthermore, plaintiff promptly moved for a dismissal of this action and
provided a satisfactory explanation for his request. Under the circumstances, it is
not an abuse of discretion to dismiss the complaint without prejudice. Accordingly,
plaintiff’s motion to dismiss this case (Dkt. 3) is GRANTED, and this case is
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Dated: August 18, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 18, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager