United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Brisbois U.S. MAGISTRATE JUDGE.
matter comes before the undersigned United States Magistrate
Judge upon the routine supervision of the cases that pend
before the Court, pursuant to a general assignment made in
accordance with the provisions of 28 U.S.C. § 636; and
upon Plaintiffs Application to Proceed in District Court
Without Prepaying Fees or Costs, [Docket No. 2], and
Plaintiffs "Motion to Withdraw Civil Rights Complaint
Also Withdrawing Application to Proceed in Forma
Pauperis", [Docket No. 9].
Cynthia Lynn Foos, a prisoner, commenced this action, on
October 8, 2015, by filing apro se complaint seeking
relief under 42 U.S.C. § 1983. She did not pay any
filing fee for this case, but instead filed an application
seeking leave to proceed in forma pauperis
("IFP"). (See Application to Proceed in
District Court Without Prepaying Fees or Costs [Docket No.
2]). In an order dated October 26, 2015, the Court ordered
Foos to pay an initial partial filing fee of at least $19.44.
(See Order [Docket No. 5]). In that same order, the
Court also informed Foos that "it may be in her best
interest to file an amended complaint alleging further facts
related to her own personal injuries." (Order, [Docket
No. 5], at n. 3). Foos paid the initial filing fee,
see [Docket No. 6], and filed an Amended Complaint,
[Docket No. 7].
reviewing Foos' Amended Complaint, the undersigned found
it insufficient. The undersigned, however, afforded Foos a
third chance by generally identifying the Amended
Complaint's deficiencies and ordering Foos to file a
Second Amended Complaint by December 30, 2015, if she wished
to pursue her claim. (Order [Docket No. 8]).
however, on January 4, 2016, Foos filed what she entitled a
“Motion to Withdraw Civil Rights Complaint Also
Withdrawing Application to Proceed In Forma Pauperis, ”
[Docket No. 9]. In that motion, Foos requested to
“withdraw her Civil rights Complaint, Case No.
15-CV-3817 (DWF/LIB), and the Application to proceed In Forma
Pauperis[.]” (Mot. to Withdraw, [Docket No. 9], at 1).
Foos does not cite to any legal authority in her motion to
support her request to withdraw. (See Id.).
document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to
less stringent standard than formal pleadings drafted by
lawyers.” Erikcon v. Pardus, 551 U.S. 89, 94
(2007) (citation omitted). Accordingly, the Court construes
Foos' motion as a notice of voluntary dismissal under
Federal Rule of Civil Procedure 41(a). “Federal Rule of
Civil Procedure 41(a)(1) allows a plaintiff to dismiss an
action without order of the court by filing a notice of
dismissal at any time before the adverse party serves an
answer or a motion for summary judgment.” Williams
v. Clarke, 82 F.3d 270, 272 (8th Cir. 1996);
see Fed.R.Civ.P. 41(a)(1). “Rule 41(a)(1)(A)
‘permits dismissal as of right, ' and thus
‘requires only notice to the court, not a motion, and
permission or order of court is not required.'”
Mashak v. Residential Credit Solutions Corp., No.
12-CV-1333 (MJD/JJG), 2013 WL 593430, at *2 (D. Minn. Jan.
10, 2013) report and recommendation adopted, No.
12-CV-1333 (MJD/JJG), 2013 WL 593427 (D. Minn. Feb. 14, 2013)
(citing Safeguard Bus. Sys., Inc. v. Hoeffel, 907
F.2d 861, 863 (8th Cir. 1990)); see Woody v. City of
Duluth, 176 F.R.D. 310 (D. Minn. 1997).
present action no adverse party has served an answer or filed
a motion for summary judgment. In fact, no party has even
been served. Accordingly, the undersigned recommends that
Plaintiff's “Motion to Withdraw Civil Rights
Complaint Also Withdrawing Application to Proceed in Forma
Pauperis”, [Docket No. 9], be construed as a notice of
voluntary dismissal as of January 4, 2016, the date it was
filed. As such, the undersigned further recommends that
Plaintiff's action be dismissed, and recommends that
dismissal be without prejudice. See Fed.R.Civ.P.
41(a)(1)(B). Having recommended that Foos' action be
dismissed, the Court will further recommend that Foos'
pending Plaintiff's Application to Proceed in District
Court Without Prepaying Fees or Costs, [Docket No. 2], be
the dismissal of this action, and Plaintiff's request to
be excused from the responsibility of paying filing fee,
Plaintiff shall remain liable for the unpaid balance of the
$350 filing fee. To date, she has paid only $19.44, so she
still owes $330.56. Prison officials will have to deduct that
amount from Plaintiff's institutional trust account and
pay it to the Clerk of Court in the manner prescribed by 28
U.S.C. § 1915(b)(2).
foregoing reasons, the Court recommends
DISMISSING the present action without
prejudice and DENYING Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, [Docket No. 2].
on the foregoing and all the files, records, and proceedings
herein, IT IS HEREBY RECOMMENDED:
this case be DISMISSED without prejudice;
and, 2. That Plaintiff's Application to Proceed in
District Court without Prepaying Fees or Costs, [Docket No.
2], be DENIED, as set forth above.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “A party may file and serve
specific written objections to a magistrate judge's
proposed findings and recommendation within 14 days after
being served with a copy of the recommended
disposition[.]” A party may respond to those objections
within 14 days after being served a copy of the objections.