Craig v. Warden Lieber Corr. Inst.

Kevin F. McDonald United States Magistrate Judge

REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

On June 20, 2019, the respondent filed a motion for summary judgment and a return and memorandum (docs. 19, 20). On June 21, 2019, by order of this court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately (doc. 21). On July 22, 2019, the petitioner filed a motion for extension of time to file his response, which was granted on July 24, 2019 (docs. 23, 24). The time period for filing of the petitioner's response was extended through August 26, 2019 (doc. 24). The petitioner did not file a timely response. As the petitioner is proceeding pro se, this court filed a second order on August 29, 2019, giving the petitioner through September 17, 2019, in which to file his response to the motion for summary judgment (doc. 27). The petitioner was again specifically advised that, if he failed to respond, this action would be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The petitioner did not file a timely response.

On September 30, 2019, the undersigned issued a report and recommendation that this action be dismissed for lack of prosecution pursuant to Rule 41(b) (doc. 31). The petitioner filed timely objections to the report on October 18, 2019 (doc. 33), and the respondent filed a response to the petitioner's objections on October 31, 2019 (doc. 35). On February 5, 2020, the Honorable Joseph F. Anderson, Jr., Senior United States District Judge, entered an order declining to adopt the report and recommendation (doc. 37). Judge Anderson construed the petitioner's objections as a motion for extension of time to respond to the motion for summary judgment and granted that motion, giving the plaintiff 21 days from the date of the order to file his response to the respondent's motion for summary judgment. Judge Anderson stated that this was the last and final extension and referred the case back to the undersigned for further proceedings (id. at 3).

On February 24, 2020, the petitioner filed a motion stating that he "would like to have [his] habeas corpus application dismissed without prejudice" (doc. 40). Federal Rule of Civil Procedure 41(a)(2) applies when a plaintiff files a motion for voluntary dismissal after the opposing party files an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(2). Rule 41(a)(2) allows the court to dismiss the action "on terms that the court considers proper." Id. As the respondent has filed a motion for summary judgment that is pending before this court, the undersigned directed the respondent to file a response to the petitioner's motion for voluntary dismissal by February 28, 2020 (doc. 41). The respondent timely filed a response on February 28^th (doc. 43).

It is well-settled that "[a] plaintiff's motion under Rule 41(a)(2) for dismissal without prejudice should not be denied absent substantial prejudice to the defendant." Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.1986) (citation omitted). In determining whether to dismiss an action with prejudice or without prejudice under Rule 41(a)(2), "a district court should consider factors such as 'the opposing party's effort and expense in preparing for trial, excessive delay and lack of diligence on the part of the movant, and insufficient explanation of the need for a voluntary dismissal,' as well as 'the present stage of litigation.'" Miller v. Terramite Corp., 114 F. App'x 536, 539 (4th Cir. 2004) (quoting Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir.1996)).

The respondent argues that if the petitioner raises these same issues again, the respondent "would be tasked with re-filing its return and moving for summary judgment once again, and, in addition move for dismissal for failure to timely file" (doc. 43 at 3). The respondent further argues that the petitioner has failed to provide "any assertion of need for the delay at this late date" (id.).

Upon consideration of the above factors, the undersigned recommends that the district court grant the petitioner's motion for voluntary dismissal without prejudice. The fact that a motion for summary judgment is pending, without more, cannot be the basis for refusing to dismiss without prejudice. Andes, 788 F.2d at 1036 n.4 ("Since Rule 41(a)(2) only applies when an answer or a motion for summary judgment has been filed by the defendants, the mere filing of an answer or a motion for summary judgment could not, without more, be a basis for refusing to dismiss without prejudice."). Further, although the petitioner did not explain his reason for seeking a voluntary dismissal in his present motion, the petitioner stated in his previous motion for extension of time that his access to the law library has been limited due to shortage of available staff, lockdown procedures, and several weeks of computer outages (doc. 33).

Based upon the foregoing, the undersigned recommends that the petitioner's motion for voluntary dismissal (doc. 40) be granted and that the petition be dismissed without prejudice. Should the district court adopt this recommendation, the respondent's motion for summary judgment (doc. 20) will be rendered moot.

IT IS SO RECOMMENDED.

s/ Kevin F. McDonald

United States Magistrate Judge March 2, 2020
Greenville, South Carolina

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).a