Opinion
2:21-CV-01843-CRE
06-22-2022
JOSEPH WELTY, Plaintiff, v. GEORGE DONKEWICZ, INMATE; SCI GREENE, DEPARTMENT OF CORRECTIONS, Defendants,
JOSEPH WELTY, Attorney(s) for Defendant(s) via electronic filing
JOSEPH WELTY, Attorney(s) for Defendant(s) via electronic filing
Honorable W. Scott Hardy United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
I. RECOMMENDATION
This civil action was initiated pro se in this Court on December 22, 2021 by Plaintiff Joseph Welty, an inmate currently in custody with the Pennsylvania Department of Corrections and housed at State Correctional Institution (“SCI”) at Greene. Plaintiff voluntarily dismissed his case and now seeks to reopen it. For the reasons that follow, it is respectfully recommended that Plaintiff's Motion to Reopen the Case ECF No. 28 be denied, and this case remain dismissed.
II. REPORT
a. Background
This case was initiated by Plaintiff pro se and proceeding in forma pauperis. The complaint was served on Defendants SCI Greene and the Department of Corrections on March 23, 2022. ECF No. 21. The complaint has not served on Defendant Donkewicz. As of this date, no Defendant filed an answer, and Defendants SCI Greene and Department of Corrections filed a motion to dismiss, which was pending before this Court. ECF No. 22.
Plaintiff submitted a one-page document to this Court dated June 7, 2022, but received and filed on June 13, 2022, stating “I would like to drop this lawsuit against George Donkewicz, Inmate; SCI Greene, and Department of Corrections, please?” ECF No. 26. This was construed as a Notice of Voluntary Dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), and the case was considered voluntarily dismissed and marked closed. ECF No. 27.
Thereafter, Plaintiff submitted a one-page document to this Court dated June 10, 2022, but received and filed on June 15, 2022, stating “I would like to reopen this lawsuit please?” ECF No. 28. Due to the liberal construction afforded to pro se filings, the Court will construe Plaintiff's filing as a Motion to Reopen the Case.
b. Discussion
Pursuant to Fed.R.Civ.P. 41, a plaintiff without a court order may dismiss an action by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]” Fed.R.Civ.P. 41(a)(1)(A)(i). “Rule 41 has a set of procedures in place whereby a plaintiff may proceed with caution in refiling the complaint, as a way to discourage plaintiffs from repeatedly filing and voluntarily dismissing complaints in federal court.” Thomas v. Ramapo Coll. of New Jersey, No. CIV.A. 10-3898, 2011 WL 3206448, at *2 (D.N.J. July 27, 2011). The Rule “makes clear that a dismissal under Rule 41(a)(1)(A)(ii) does not require a court order, nor does it require the approval of the court.” State Nat'l Ins. Co. v. Cty. Of Camden, 824 F.3d 399, 406 (3d Cir. 2016). See also Blair v. Comprehensive Healthcare Mgt. Services, LLC, 2:18-CV-1667, 2021 WL 3855931, at *3 (W.D. Pa. Aug. 27, 2021). Because a dismissal under Rule 41(a)(1)(A)(ii) does not require a court order or approval, [the Court of Appeals for the Third Circuit has] held that ‘[t]he entry of such a stipulation of dismissal is effective automatically.' ” State Nat'l Ins. Co, 824 F.3d at 406 (quoting First Nat. Bank of Toms River, N. J. v. Marine City, Inc., 411 F.2d 674, 677 (3d Cir. 1969)). A stipulation to dismiss under Rule 41(a)(1)(A) is “immediately self-executing. No separate entry or order is required to effectuate the dismissal.” State Nat'l Ins. Co, 824 F.3d at 406-07 (footnotes omitted). Once a plaintiff files a voluntary stipulation, “the action on the merits is at an end[,]” and “[a]ny action by the district court after the filing of [the Stipulation of Dismissal] can have no force or effect because the matter has already been dismissed. A voluntary dismissal deprives the District Court of jurisdiction over the action.” Id. (citations and footnotes omitted) (alterations in original).
While the court of appeals was addressing Fed.R.Civ.P. 41(a)(1)(A)(ii), there is no substantive difference between that provision and Fed.R.Civ.P. 41(a)(1)(A)(i) related to not needing a separate order or entry to effectuate the dismissal.
While a voluntary dismissal with prejudice is considered a final judgment, “a voluntary dismissal without prejudice is not a final judgment. It ‘effectively erases the dismissed action and permits the initiation of a second action, but it is neither final nor appealable.' ” Bulut v. JP Morgan Chase Bank, N.A., No. CV 18-9303, 2022 WL 1213480, at *2 (D.N.J. Apr. 25, 2022) (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2367 (4th ed. 2008)). Under Rule 41(a)(1), a voluntary dismissal is without prejudice unless the notice or stipulation states otherwise. Fed.R.Civ.P. 41(a)(1)(B). Here, the notice filed by Plaintiff was silent as to whether the voluntary dismissal was made with or without prejudice, so it will be assumed the dismissal was made without prejudice. A voluntary dismissal without prejudice “is not a final decision because the plaintiff may refile the complaint.” S.B. v. KinderCare Learning Centers, LLC, 815 F.3d 150, 152 (3d Cir. 2016). Because Plaintiff voluntarily dismissed this action pursuant to Rule 41(a), “the proper procedure is to require [Plaintiff] to file a new civil action rather than reopen an action that was deemed voluntarily dismissed.” Baxter v. Atl. Care Main Pomona Hosp., No. CIV. 13-7876 RBK JS, 2015 WL 715012, at *1 (D.N.J. Feb. 19, 2015). When Plaintiff filed his voluntary dismissal, his case was removed from the docket, and he may not restore the case to the active docket by simply moving to reopen. Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 132 (3d Cir. 2004) (Alito, dissenting); Braun v. Gonzales, No. CIV. 11-186-RGA, 2013 WL 1405946, at *1 (D. Del. Apr. 8, 2013). Instead, his recourse is to “refile the complaint, assuming [his] claims are not time-barred.” Penn W. Assocs., Inc., 371 F.3d at 132 (Alito, dissenting).
Alternatively, even if Plaintiff's voluntary dismissal without prejudice eventually ripened into a dismissal with prejudice because his claims were time-barred, Plaintiff does not qualify for relief under Federal Rule of Civil Procedure 60(b). Penn W. Assocs., Inc., 371 F.3d at 132 (Alito, dissenting). Fed.R.Civ.P. 60(b) authorizes a court to relieve a party from a final judgment, order or proceeding where there is:
The events giving rise to Plaintiff's claims occurred on July 31, 2020. Am. Compl. ECF No. 8 at p. 4. Plaintiff claims that he filed a grievance in relation to his claims asserted here and indicated on March 1, 2022, he was “waiting on the highest level of my grievance process to get back to me from the D.O.C. inmate grievance and appeals to respond back to me - nothing yet.” ECF No. 8 at p. 7. No finding is made as to whether Plaintiff's claims are time-barred, and the undersigned is mindful that under the Prison Litigation Reform Act (“PLRA”), the statute of limitations for section 1983 claims are tolled pending exhaustion of administrative remedies. Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 602-03 (3d Cir. 2015) (two-year statute of limitations applies to section 1983 claims in Pennsylvania). Given Plaintiff's assertion that he has adequately grieved his claims thus far and as of March 2022, he was awaiting a final determination, it is likely the statute of limitations on his claims have not expired; however, without the benefit of a completed record, the undersigned will conduct an analysis under Rule 60(b) should Plaintiff's claims be time-barred.
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.Fed. R. Civ. P. 60(b)(1)-(6). Subsections (1), (2), (3), (4), and (5) do not apply under these circumstances, as Plaintiff voluntarily dismissed his action. Therefore, the Court will only consider subsection (6). “[T]he Rule 60(b)(6) ground for relief from judgment provides for extraordinary relief and may only be invoked upon a showing of exceptional circumstances.” Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002) (quoting In re Fine Paper Antitrust Litig., 840 F.2d 188, 194 (3d Cir. 1988)). A party seeking relief under Rule 60(b)(6) must show that without relief “an extreme and unexpected hardship will result.” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). Importantly here, “in cases where parties make a ‘deliberate, strategic choice' that is ‘not the result of mistake or excusable neglect' to voluntarily dismiss a matter under Rule 41, ‘it should not be undone via Rule 60(b).' ” Bulut, 2022 WL 1213480, at *2-3 (quoting Thomas, 2011 WL 3206448, at *3). Plaintiff offers no argument supporting his request to reopen his case, or that he voluntarily dismissed this action by mistake or excusable neglect. He made the unilateral decision to voluntarily dismiss his action and cannot “now reopen this matter as a back-up plan[.]” Bulut, 2022 WL 1213480, at *2-3.
III. CONCLUSION
Accordingly, based on the foregoing, it is respectfully recommended that Plaintiff's motion to reopen (ECF No. 28) be denied and this case remain dismissed.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by July 11, 2022 and Defendants, because they are electronically registered parties, must file written objections, if any, by July 6, 2022. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also Equal Emp. Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).