Opinion
Civil Action 4:21-CV-2081
02-15-2022
KELVIN FORD, Plaintiff v. ACTING WARDEN HALL, et al., Defendants
RAMBO, D.J.
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Federal inmate Kelvin Ford (“Plaintiff”) lodged this pro se civil action. (Doc. 1). On December 28, 2021, Plaintiff filed a motion requesting that his case be held in abeyance or dismissed so that he can exhaust his administrative remedies. (Doc. 5).
It is RECOMMENDED that:
(1) Plaintiff's Motion requesting that his case be held in abeyance or dismissed so that he can exhaust his administrative remedies (Doc. 5) be construed as a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(1).
(2) The Clerk of Court be DIRECTED to close this case.
II. ANALYSIS
On December 13, 2021, Plaintiff lodged this pro se civil action. (Doc. 1). On the date Plaintiff's complaint was received, the Court issued a 30-day Administrative Order directing Plaintiff to file a motion requesting leave to proceed in forma pauperis (“IFP Motion”) or pay the civil filing fee. (Doc. 3). The
IFP motion or filing fee was due on January 17, 2022 and has not been received.
The absence of a response to the Court's 30-day order supports the undersigned's interpretation that Plaintiff's Motion (Doc. 5) should be construed as a notice of dismissal. I note, however, in the alterative that the failure to pay a filing fee or file an IFP motion itself may be a basis for dismissal. See Lindsey v. Roman, 408 Fed.Appx. 530, 532-22 (3d Cir. 2010) (affirming a District Court's dismissal of a pro se litigant's complaint where the litigant did not pay the fee or submit the appropriate forms in support of his application to proceed in forma pauperis); Parker v. Harrisburg City, No. 1:17-CV-653, 2017 WL 3015880, at *2 (M.D. Pa. June 7, 2017) report and recommendation adopted by 2017 WL 3008583 (M.D. Pa. July 14, 2017).
On December 28, 2021, Plaintiff filed a motion requesting that his case be held in abeyance or dismissed so that he can exhaust his administrative remedies. (Doc. 5). In his motion, Plaintiff states that he is:
respectfully moving this honorable court to place the above caption case in abeyance, or in the alternative to dismiss petition without prejudice. The Petitioner believes that it would be in the best interest of justice, as well as to his best interest to exhaust his administrative remedies before exercising his right to petition the court.(Doc. 5).
“Rule 41(a)(1)(A)(i) establishes a ‘bright-line test' on a plaintiff's right to dismiss a case early in the litigation.” Collins v. Lincoln Caverns, Inc., No. 1:CV-11-0355, 2011 WL 4625552 at *2 (M.D. Pa. Oct. 3, 2011) (citing In re Bath and Kitchen Fixtures Anti-Trust Litig., 535 F.3d 161, 165 (3d Cir. 2008)). This rule provides, in relevant part that:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment;
“A filing under [Rule 41(a)(1)(A)(i)] is a notice, not a motion. Its effect is automatic: the defendant does not file a response, and no order of the district court is needed to end the action.” In re Bath and Kitchen Fixtures, 535 F.3d at 165. A plaintiff is entitled to dismiss an action without prejudice under this rule, if (1) he or she has “never before dismissed an action based on or including the same claim; and (2) defendants have not served an answer or motion for summary judgment.” Id. Those circumstances appear to be present here. The Court is not aware of any action previously dismissed by Plaintiff under Rule 41(a)(1)(A)(i) based on or including the same claim. No. Defendant has filed an answer to Plaintiff's complaint or a motion for summary judgment.
III. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Plaintiff's Motion requesting that his case be held in abeyance or dismissed so that he can exhaust his administrative remedies (Doc. 5) be construed as a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(1).
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the
Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.