Owens v. O' Tool et al

Filing 27

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the Plaintiff's request for voluntary dismissal (Docket Entry No. 24) be GRANTED and that this action be DISMISSED WITHOUT PREJUDICE. Signed by Magistrate Judge Juliet E. Griffin on 1/26/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DAVID LEE OWENS
v.
MOLLY O’TOOLE

TO:

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NO. 3:14-2040

Honorable Kevin H. Sharp, Chief District Judge

REPORT AND RECOMMENDATION
The plaintiff is an inmate of the Tennessee Department of Correction (“TDOC”) confined
at the Lois M. DeBerry Special Needs Facility. He filed this action pro se and in forma pauperis
under 42 U.S.C. § 1983 against several defendants based on allegations that he was being threatened
with the forcible administration of psychotropic medication in violation of his Fourteenth and Eighth
Amendment rights. By Order entered November 12, 2014 (Docket Entry No. 9), the Court found
that the plaintiff had stated a colorable constitutional claim against Defendant Molly O’Toole, a
psychiatrist who works with TDOC inmates, for a violation of the plaintiff’s Eighth Amendment
rights. On December 11, 2014, Defendant O’Toole filed an answer (Docket Entry No. 15), and a
scheduling order (Docket Entry No. 16) was entered on December 12, 2014.
By Order entered January 9, 2015 (Docket Entry No. 23), the Court directed that Defendant
O’Toole file a response to the plaintiff’s pending motions (Docket Entry Nos. 6 and 19) for

restraining orders in which he complained that he was being forced to take medications to which he
objects and without any form of due process.
The plaintiff thereafter filed a “motion to withdrawal” (Docket Entry No. 24), which
consisted of nothing other than the motion’s heading. On January 16, 2015, Defendant O’Toole filed
her response to the Order stating that the plaintiff had been administered psychotropic medication
in May 2014, after the plaintiff’s situation and his need for medication was reviewed by a Treatment
Review Committee, that the plaintiff has been continuously administered medication with some
adjustments since that time, and that O’Toole has met with the plaintiff to discuss the original
administration of the medication and the subsequent adjustments. See Affidavit of O’Toole (Docket
Entry No. 25-1). Defendant O’Toole also states that she recently met with the plaintiff for a clinical
assessment and that the plaintiff made an unsolicited statement to her that he “was satisfied with his
medication regimen” and “he intended to withdraw his lawsuit.” Id. Defendant O’Toole states that
she does not oppose the plaintiff’s voluntary dismissal of the case, but requests an extension of time
to respond to the plaintiff’s motions for preliminary injunctive relief in the event that the plaintiff
indicates a desire to continue the lawsuit. See Response (Docket Entry No. 25).
In light of the plaintiff’s recent filing of the “motion to withdrawal” and the affidavit
statements from Defendant O’Toole concerning her recent conversation with the plaintiff, the Court
finds that the plaintiff intended his recent filing as a motion to dismiss the lawsuit. Rule 41(a)(2)
of the Federal Rules of Civil Procedure provides that, if an answer has been filed prior to the
plaintiff’s request for voluntary dismissal, “an action may be dismissed upon the plaintiff’s request
only by court order, on terms that the court considers proper.” Such a dismissal is without prejudice
unless the court states otherwise in its order dismissing the case. Id. The purpose of Rule 41(a)(2)
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is to protect the nonmovant from unfair treatment. See Bridgeport Music, Inc. v. Universal-MCA
Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009). In the instant action, Court finds that the action
should be dismissed as requested by the plaintiff and that, given the relatively early stage of this
lawsuit, the dismissal should be without prejudice.

RECOMMENDATION
For the reasons set out herein, the Court respectfully RECOMMENDS that the Plaintiff’s
request for voluntary dismissal (Docket Entry No. 24) be GRANTED and that this action be
DISMISSED WITHOUT PREJUDICE.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District
Court’s Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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