United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION TO VOLUNTARILY DISMISS ACTION
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE.
Robert Garcia, proceeding pro se and in forma
pauperis, has filed this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is
Plaintiff's Motion to Voluntarily Dismiss Action. (D.E.
an inmate currently housed at the Mark Stiles Unit of the
Texas Department of Criminal Justice, raises in this civil
right action an Eighth Amendment claim of excessive force
against Lieutenant Humberto Hinojosa
(“Defendant”) arising from his time in the Nueces
County Jail as a pretrial detainee. (D.E. 11). Plaintiff also
made claims against Nueces County and Sheriff Jim Kaelin, but
he has voluntarily dismissed those defendants. (D.E. 19, 20).
October 10, 2018, Defendant filed a motion for summary
judgment, to which Plaintiff did not respond. (D.E. 30).
Defendant contended that Plaintiff had failed to exhaust his
administrative remedies as required by 42 U.S.C. §
1997e(a). On February 4, 2019, the undersigned issued a
Memorandum and Recommendation (M&R), recommending that
Defendant's summary judgment motion be granted and that
this action be dismissed for failure to exhaust
administrative remedies. (D.E. 31).
February 14, 2019, Plaintiff moved to voluntarily dismiss
this action without prejudice. (D.E. 32). While also styling
his motion as objections, Plaintiff offers nothing to suggest
that he disagrees with the findings and conclusions in the
M&R. Rather, Plaintiff acknowledges that he did not
exhaust his administrative remedies. (D.E. 32, p. 2).
objects to Plaintiff's motion, arguing that he will
suffer prejudice should the voluntary dismissal be granted.
(D.E. 33, p. 2). Specifically, Defendant contends that he
will “suffer legal prejudice if this Court grants
[Plaintiff's] motion because [Defendant] will be denied
finality on this preliminary issue [of exhaustion] after the
considerable resources expended to present this issue for the
Court's consideration.” (D.E. 33, p. 3).
Court generally has discretion to grant Plaintiff's
motion for voluntary dismissal “on terms that the court
considers proper.” Fed.R.Civ.P. 41(a)(2). “In
ruling on a motion under Rule 41(a)(2), the court considers
the risk of prejudice to the nonmovant and whether dismissal
of the action will result in plain legal prejudice to the
nonmovant.” Great American Ins. Co. v. Goin,
No. 3:15-CV-75-L, 2017 WL 4238698, at *5 (N.D. Tex. Sep. 25,
2017) (internal quotations and citation omitted). Thus,
“[i]f a defendant will suffer some cognizable prejudice
greater than the mere prospect of a second lawsuit, voluntary
dismissal without prejudice should be denied.”
Hartford Acc. & Imdem. Co. v. Costa Lines Cargo
Servs., Inc., 903 F.2d 352, 361 (5th Cir. 1990). Typical
examples of such prejudice occur when: (1) a party seeks
dismissal in the later stages of litigation after the
defendant has exerted significant time and effort; or (2) a
party seeks to avoid an imminent, adverse ruling. In re
FEMA Trailer Formaldahyde Prods. Liab. Litig., 628 F.3d
157, 162 (5th Cir. 2010); United States ex rel. Doe v.
Dow Chem. Co., 343 F.3d 325, 330 (5th Cir. 2003).
case, Defendant has exerted time and considerable resources
in preparing his summary judgment motion to which Plaintiff
did not respond. The undersigned recently issued an M&R
recommending that Defendant's summary judgment motion be
granted and that this action be dismissed for lack of
exhaustion. Given these events, it is apparent that Plaintiff
now seeks to avoid an imminent, adverse ruling by the
District Judge on both Defendant's summary judgment
motion and the M&R. The undersigned finds, therefore,
that Defendant will suffer legal prejudice if the Court
grants Plaintiff's motion for voluntary dismissal.
Indeed, granting Plaintiff a voluntary dismissal at this
stage in the case would deny Defendant finality as to the
issue of exhaustion and essentially place the parties in the
same position as if this action had never been filed.
it is respectfully recommended that Plaintiff's Motion to
Voluntarily Dismiss Action (D.E. 32) be DENIED.
Clerk will file this Memorandum and Recommendation and
transmit a copy to each party or counsel. Within FOURTEEN
(14) DAYS after being served with a copy of the Memorandum
and Recommendation, a party may file with the Clerk and serve
on the United States Magistrate Judge and all parties,
written objections, pursuant to Fed.R.Civ.P. 72(b), 28 U.S.C.
§ 636(b)(1), General Order No. 2002-13, United States
District Court for the Southern District of Texas.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court. Douglass v. United Servs. Auto
Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).