United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker United States District Judge.
Court has received Findings and Recommendation submitted by
United States Magistrate Judge Patricia S. Harris (Dkt. No.
58). Judge Harris recommends this Court grant defendants Stan
McGahee, Donnie Ford, Tommy Stringfellow, Michael Parnell,
and Matthew Parnell's motion to dismiss. In the Findings
and Recommendation, Judge Harris determines that plaintiff
Terry Joe Doshier's claims are time-barred and recommends
dismissal with prejudice of this action. Judge Harris further
certifies that a dismissal of this action will count as a
“strike” within the meaning of the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §
1915(g). Mr. Doshier filed objections to the Findings and
Recommendation (Dkt. No. 63). Defendants Mr. McGahee, Mr.
Ford, Mr. Stringfellow, Mr. Michael Parnell, and Mr. Matthew
Parnell filed a response to Mr. Doshier's objections
(Dkt. No. 65). After filing his objections, Mr. Doshier filed
a motion to voluntarily withdraw litigation (Dkt. No. 66).
Federal Rule of Civil Procedure 41(a), a plaintiff may
dismiss an action without a court order 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). Unless the notice states otherwise, the
dismissal is without prejudice. Fed.R.Civ.P. 41(a)(1)(B).
However, once an answer or motion for summary judgment is
served, an action may be dismissed at the plaintiff's
request only by court order and on terms the court considers
proper. Fed.R.Civ.P. 41(a)(2). Motions to dismiss under
Federal Rule of Civil Procedure 12 “are neither answers
nor motions for summary judgment.” Brackett v.
State Highways & Transp. Comm'n of Missouri, 163
F.R.D. 305, 307-08 (W.D. Mo. 1995). However, courts may
construe a motion to dismiss as a motion for summary
judgment, thus precluding a plaintiff's right to dismiss
under Rule 41(a)(1), upon presentation of evidence outside
the pleadings. Fed.R.Civ.P. 12(b)(6); see also Nix v.
Fulton Lodge No. 2 of Int'l Ass'n of Machinists &
Aerospace Workers, 452 F.2d 794, 797-98 (5th Cir. 1971)
(motions to dismiss that were not accompanied by any
affidavits or other matters outside the pleadings so as to
convert the motions into motions for summary judgment, did
not preclude the plaintiff from moving, before an answer was
filed, for a voluntary dismissal of the amended complaint).
“Although a few cases have held that because the merits
of the litigation had been reached, a dismissal by notice
under Rule 41(a)(1) was improper despite the fact that
neither an answer nor a motion for summary judgment had been
served, most cases have refused to do so.” 9 Wright
& A. Miller, Fed. Prac. & Proc. Civ. § 2363 (3d.
ed. 2004) (collecting cases).
Eighth Circuit Court of Appeals has cautioned that courts
should construe Rule 41(a)(1) narrowly when the rule might
appear to limit the plaintiff's right to a dismissal
without prejudice. Safeguard Business Systems v.
Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990) (reversing
the denial of a motion for voluntary dismissal when plaintiff
had noticed of voluntary dismissal without prejudice before
the defendant filed an answer or motion for summary judgment
but after a lengthy hearing denying plaintiff a temporary
restraining order); see also Foss v. Fed. Intermediate
Credit Bank of St. Paul, 808 F.2d 657, 660 (8th Cir.
1986) (“[T]his Court and other courts have recognized
that Rule 41(a)(1)(i) must not be stretched beyond its
literal terms if it is to serve its intended
defendants have not served an answer or a motion for summary
judgment. Defendants' motion to dismiss is unaccompanied
by evidence outside the pleadings for the Court's
consideration and, thus, cannot be construed by the Court as
a motion for summary judgment. As such, Mr. Doshier has the
right to dismiss his lawsuit pursuant to Rule 41(a)(1)(A)(i).
See Foss, 808 F.2d at 660 (“Since at the time
the Fosses filed their notice of voluntary dismissal with the
clerk of the district court, the appellees had not yet served
an answer or a motion for summary judgment, the district
court erred in refusing to give effect to the
dismissal.”); see also 9 Wright & A.
Miller, Fed. Prac. & Proc. Civ., § 2363.
a plaintiff's absolute right to dismissal is
“subject to Rules 23(e), 23.1(c), 23.2, and 66 and any
applicable federal statute.” Fed.R.Civ.P. 41(a)(1)(A).
Mr. Doshier is an inmate at the Beaumont Medium Federal
Correctional Center in Beaumont, Texas. Courts interpret the
PLRA as an applicable federal statute for purposes of
voluntary dismissal under Rule 41(a). See Hines v.
Graham, 320 F.Supp.2d 511, 524 (N.D. Tex. 2004);
Sumner v. Tucker, 9 F.Supp.2d 641, 643-44 (E.D. Va.
1998). As such, the provisions of the PLRA govern here. The
PLRA states that federal courts shall dismiss actions filed
in forma pauperis if, at any
time, the court determines that the action
is frivolous, malicious, or fails to state a claim upon which
relief can be granted. See 28 U.S.C. §
1915(e)(2)(B); Key v. Does, 217 F.Supp.3d. 1006,
1008 (E.D. Ark. 2016). Such dismissal may constitute a
“strike” under the PLRA. 18 U.S.C. §
1915(g). In considering the issue of voluntary dismissal
under Rule 41(a), courts reason that prisoners should not be
allowed to frustrate Congress's intent in enacting the
PLRA by voluntarily dismissing a complaint when it appears
the complaint will be unsuccessful. Hines, 320
F.Supp.2d at 526; Taylor v. First Med. Mgmt., 508
Fed. App'x 488, 497 (6th Cir. 2012) (“A plaintiff
cannot avoid incurring a strike by simply voluntarily
dismissing his claim.”); Crandle v. Elkins,
No. 2:18-CV-463, 2018 U.S. Dist. LEXIS 92334, at *3 (W.D. La.
June 1, 2018) (same). Here, Judge Harris recommends that
dismissal of this action count as a “strike”
within the meaning of the PLRA.
such, the Court denies Mr. Doshier's motion to
voluntarily withdraw (Dkt. No. 66). Mr. Doshier cannot avoid
imposition of a strike under the PLRA by dismissing
voluntarily his claims. The Court notes that, even if it
declined to adopt the Findings and Recommendation and granted
Mr. Doshier's motion for voluntary dismissal without
prejudice, Mr. Doshier's 28 U.S.C. § 1983 claims are
time-barred by the applicable statute of limitations. Mr.
Doshier fails to state a claim for relief.
review of the Findings and Recommendation and Mr.
Doshier's objections, as well as a de novo
review of the record, the Court adopts the Findings and
Recommendation in their entirety (Dkt. No. 58). Accordingly,
the Court grants the motions to dismiss filed by defendants
(Dkt. Nos. 40, 45). Mr. Doshier's claims are dismissed
with prejudice. The Court certifies that this action counts
as a “strike” within the meaning of 28 U.S.C.
§ 1915(g). The Court further certifies that, pursuant to
28 U.S.C. § 1915(a)(3), an in forma pauperis
appeal from this Order would not be taken in good faith.
therefore ordered that:
1. Mr. Doshier's motion for default judgment is denied
(Dkt. No. 55);
2. Mr. Doshier's motion to voluntarily withdraw is denied
(Dkt. No. 66);
3. The Court adopts the Findings and Recommendation in its
entirety and grants defendants' motion to dismiss (Dkt.
Nos. 40, 45). Mr. Doshier's claims are dismissed with
4. The Court certifies that this action counts as a strike
within the meaning of 28 U.S.C. § 1915(g); and
5. The Court certifies that, pursuant to 28 U.S.C. §
1915(a)(3), an in forma pauperis appeal from this