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Hopper v. Session

United States District Court, D. South Carolina

April 30, 2018

Gerald Damone Hopper, Plaintiff,
v.
Jefferson B Session, III; Mark S. Inch; H Joyner; Regina D Bradley; Reginal Perkins; R. Lepaine; D. Garcia; Jade Lloyd, Defendants.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         This is a civil rights action filed pursuant to the Bivens Doctrine. The pro se Plaintiff is a federal prisoner. Therefore, under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. This case is before the court for consideration of an “Omnibus Motion” including a Motion to Voluntarily Dismiss this case submitted by Plaintiff on April 24, 2018. ECF Nos. 43, 43-2 at 2.

         I. Procedural Background

         In his Motion, Plaintiff indicates that he wants to voluntarily dismiss this case without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) because he did not fully exhaust his administrative remedies before filing it. ECF No. 43 at 2. Plaintiff has already filed another Complaint in this court addressing the same subject matter as the Complaint that he now wishes to dismiss. Hopper v. Session, No. 5:18-cv-01147-MGL-KDW (“the new case”). In addition to his request to voluntarily dismiss the case, Plaintiff asks this court to “incorporate and consolidate the rulings, orders, exhibits, and motions in [this case] with Plaintiff's [new Bivens action].” ECF No. 43.

         II. Discussion

         Review of the current status of this case shows that even though process was issued and service ordered on the Defendants on February 13, 2018, ECF No. 13, no Defendant has yet appeared in this case. Thus, Plaintiff's Motion to Voluntarily Dismiss under Rule 41(a)(1)(A)(i) is timely and should be granted.

         However, the remainder of Plaintiff's Motion, seeking incorporation of the pleadings, documents, and rulings in this case into the new case should be denied. Plaintiff provides no legal support for the type of wholesale incorporation that he requests nor does he explain his basis for requesting such relief. By filing a new case, Plaintiff began the process of review/service/response over again and any pending motion in this case is necessarily dismissed along with the case. New deadlines will be established in the new case and any effort to incorporate or consolidate pleadings from this case would result in confusion and judicial inefficiency. Also, the undersigned finds that consolidation of the two cases would be inappropriate where this case is being dismissed and not retained on the court's active docket at Plaintiff's request. Fed.R.Civ.P. 42(a) (consolidated actions must be “before the court”); see EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998) (holding that “[c]onsolidation is inappropriate . . . if it leads to inefficiency, inconvenience, or unfair prejudice to a party.”). Moreover, such incorporation and consolidation is unnecessary for the court to take judicial notice of the court's rulings in this case should that prove necessary at some point during the litigation of the new case. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“‘[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”').

         III. Recommendation

         Accordingly, based on the foregoing, it is recommended that Plaintiffs Omnibus Motion be granted in part and denied in part. It is recommended that this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) and without the incorporation of any filings into the new case.

         The parties' attention is directed to the important notice on the following page.

         Notice of Right to File Objections to Report and Recommendation

         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:

Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South ...

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