United States District Court, D. South Carolina, Aiken Division
Bryan Harwell United States District Judge
Bryantavious Murray, a state prisoner proceeding pro se,
filed this action pursuant to 42 U.S.C. § 1983 against
the above-captioned Defendants. After Defendants filed a
motion for summary judgment, Plaintiff filed a motion to
voluntarily dismiss this action. See ECF Nos. 44
& 47. The matter is now before the Court for review of a
Report and Recommendation (“R & R”) issued by
United States Magistrate Judge Shiva V. Hodges, who
recommends granting Plaintiff's motion for a voluntary
dismissal and dismissing Plaintiff's federal claims with
prejudice and his state claims without
prejudice. See R & R [ECF No. 49].
Plaintiff has filed timely objections to the R & R, and
Defendants have filed a timely reply to Plaintiff's
objections. See Pl.'s Objs. [ECF No. 51];
Defs.' Reply [ECF No. 52].
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
January 18, 2017,  Plaintiff filed a complaint pursuant to 42
U.S.C. § 1983 against Defendants alleging violations of
his constitutional rights, including Eighth Amendment
excessive force claims. See Complaint [ECF No. 1].
The Magistrate Judge authorized service, and after Defendants
filed an answer to Plaintiff's complaint, the Magistrate
Judge entered a scheduling order setting a discovery deadline
of May 9, 2017. See ECF Nos. 7, 22, & 24.
March 13, 2017,  Plaintiff filed a motion seeking leave to
amend his complaint “to show a clear Eighth Amendment
violation.” See ECF No. 32. The Magistrate
Judge denied Plaintiff's motion to amend on April 26,
2017. See ECF No. 37 at 3-4. Plaintiff did not file
objections to the Magistrate Judge's denial of his motion
to amend. See Fed. R. Civ. P. 72(a) (permitting a
party to file objections to a magistrate judge's ruling
on a nondispositive matter “within 14 days after being
served with a copy” of the order); Steele v.
Capital One Home Loans, LLC, 594 F. App'x 215, 216
(4th Cir. 2015) (recognizing a motion to amend is a
4, 2017, Defendants filed a motion for summary judgment with
a thirteen-page supporting memorandum and six affidavits.
See ECF No. 44. The Magistrate Judge entered an
order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), advising Plaintiff of the summary judgment
procedures and the possible consequences of failing to
respond adequately to Defendants' motion. See
ECF No. 45. Rather than filing a response in opposition to
Defendants' motion, Plaintiff filed a one-sentence motion
on May 10, 2017,  stating he wanted to voluntarily dismiss
his complaint “so that I can file it properly and with
the right courts.” ECF No. 47. Defendants filed a
response to Plaintiff's motion stating, “Defendants
have no objection to Plaintiff's Motion so long as the
Court dismisses his federal causes of action with prejudice.
Defendants have spent considerable time and resources
preparing their Summary Judgment Motion and Memorandum
concerning Plaintiff's claims under federal law.”
ECF No. 48. Significantly, Plaintiff did not file a reply to
Defendants' response.On June 9, 2017, the Magistrate Judge
issued an R & R recommending that the Court (1) grant
Plaintiff's motion for a voluntary dismissal and dismiss
Plaintiff's federal claims
with prejudice and his
state claims without
prejudice; and (2) find Defendants' motion for
summary judgment is moot.
R & R at 2.
objections to the R & R, Plaintiff indicates he wants
this entire case dismissed without prejudice, citing Federal
Rule of Civil Procedure 41(a)(2) and requesting that the
Court dismiss “his case without prejudice so that he
can refile his claims in the appropriate court.”
Pl.'s Objs. In their reply to Plaintiff's objections,
Defendants ask that the Court adopt the R & R and dismiss
the federal claims with prejudice because they have spent
considerable time and resources preparing their summary
judgment motion. Defs.' Reply at 1.
41(a)(2) permits a court to dismiss an action at the
plaintiff's request “on terms that the court
considers proper, ” and “[u]nless the order
states otherwise, a dismissal . . . is without
prejudice.” Fed.R.Civ.P. 41(a)(2). When considering a
plaintiff's motion for a voluntary dismissal without
prejudice, “the district court must focus primarily on
protecting the interests of the defendant, ” Davis
v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987), and
should not deny the motion “absent plain legal
prejudice to the defendant.” Ellett Bros. v. U.S.
Fid. & Guar. Co., 275 F.3d 384, 388 (4th Cir. 2001).
A court should consider the following factors: “(1) the
opposing party's effort and expense in preparing for
trial; (2) excessive delay or lack of diligence on the part
of the movant; (3) insufficient explanation of the need for a
dismissal [without prejudice]; and (4) the present stage of
the litigation, i.e., whether a motion for summary judgment
is pending.” Gross v. Spies, 133 F.3d 914,
1998 WL 8006, at *5 (4th Cir. 1998) (unpublished).
Fourth Circuit has “held that the mere filing of a
motion for summary judgment is not, without more, a basis for
refusing to dismiss without prejudice, ” but has
“also found on multiple occasions that a district court
does not abuse its discretion in denying a motion for
voluntary dismissal if the case has advanced to the summary
judgment stage and the parties have incurred substantial
costs in discovery.” Howard v. Inova Health Care
Servs., 302 F. App'x 166, 179 (4th Cir. 2008)
(internal quotation marks omitted) (collecting cases). In
other words, the “denial of voluntary dismissal is
appropriate where summary judgment is imminent.”
Davis, 819 F.2d at 1274; see also Skinner v.
First Am. Bank of Virginia, 64 F.3d 659, 1995 WL 507264,
at *2 n.2 (4th Cir. 1995) (unpublished) (“[I]t is
unfair to a defendant to let a claimant select a forum in
which to prosecute her claims, then be allowed to bail out
scotfree to try the same claims in another forum after losing
on the merits or seeing the adverse handwriting on the wall
in the first chosen forum.” (alteration in original)).
case, Defendants have filed a motion for summary judgment,
prepared a supporting memorandum, and obtained six
affidavits. Plaintiff has not acted diligently in seeking a
voluntary dismissal, as he filed this motion after
Defendants filed their motion for summary judgment and after
the discovery deadline expired. Notably, Plaintiff did not
file objections to the Magistrate Judge's prior denial of
his motion to amend his complaint (which occurred before
Defendants filed the motion for summary judgment).
Additionally, Plaintiff did not file a response in opposition
to Defendants' motion for summary judgment despite being
sent a Roseboro order. He has given no substantive
basis to refute Defendants' arguments for summary
judgment, either by filing a response in opposition or by way
of his objections. Moreover, Plaintiff did not file a reply
addressing the representations that Defendants made in their
response to his ...