Opinion
2:16-CV-01068-CB
05-13-2019
DAVID S. JOHNSON, Plaintiff, v. SARA FALOTICO, ALEXANDER VISNICH, UNIVERSITY OF PITTSBURGH POLICE DEPARTMENT; SGT. JOHN DOE, (NAME UNKNOWN) UNIVERSITY OF PITTSBURGH POLICE DEPARTMENT; AND OFFICER JOHN DOE, (NAME UNKNOWN) UNIVERSITY OF PITTSBURGH POLICE DEPARTMENT; Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
This civil action was initiated in this court on July 21, 2016 by pro se Plaintiff David S. Johnson. Presently for disposition is Plaintiff's "Motion to Dismiss" his complaint (ECF No. 75). For the reasons that follow, it is respectfully recommended that this motion be treated as a stipulation of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) and be approved by the district court judge and that this case be dismissed with prejudice. Alternatively, it is respectfully recommended that the court deny Plaintiff's motion to dismiss and provide Plaintiff with an opportunity to file a proper Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) to dismiss this case with prejudice.
II. REPORT
On April 29, 2019, the undersigned held a telephonic status conference to discuss the status of the case and settlement. Order of 4/3/19 (ECF No. 73). During the telephonic status conference, Plaintiff asked the court to take disciplinary measures against the remaining defendants in this case. The undersigned responded that court has no authority to take employment disciplinary actions against the remaining defendants in this case. After discussing settlement, and settlement not having been reached, the undersigned informed the parties that a discovery schedule would be entered. Defendants further agreed to return the property confiscated from Plaintiff during his arrest. See Minute Entry of 4/29/19 (ECF No. 74). Thereafter, Plaintiff informed the court that he no longer wished to maintain this action and wished to dismiss it with prejudice. Id. In light of this, the undersigned directed Plaintiff to file a notice of dismissal by May 6, 2019. Id.
See Telfair v. Off. of U.S. Atty., 443 Fed. Appx. 674, 676 (3d Cir. 2011) (unpublished) (reversing district court on other grounds, but not on grounds that the district court found it had "no authority to engage in a disciplinary review over 'DEA agents, police officers, jail officials' and others[.]").
Instead of filing a proper notice of dismissal, Plaintiff filed a "Motion to Dismiss" his complaint on May 7, 2019. (ECF No. 75). Plaintiff's motion states in pertinent part:
The plaintiff does not dismiss this complaint because his claims are untrue, but does dismiss this complaint because, in accordance with the explanation of the court, he cannot expect any disciplinary measures to be taken against the named Defendants for their actions. Wherefore, as there is no redress which may be obtained through the court for violations of his rights by the Defendants that would prevent them from repeating such abuses, and in recognition that such a lack of capacity for redress does thereby express governmental support for such abuses, the Plaintiff does withdraw his complaint.Id.
The undersigned made no finding that Plaintiff had no redress for the alleged violations of his rights which would "prevent [Defendants] from repeating such abuses[.]" Id. Rather, when Plaintiff indicated to the undersigned that he wanted the court to discipline the officers for their alleged actions, the undersigned explained to the Plaintiff that it had no authority to do so. The undersigned did not foreclose any potential right that Plaintiff may have to monetary damages, or to injunctive or declaratory relief.
As set forth at length in his complaint, Plaintiff seeks an immense amount of compensatory and punitive damages. See Compl. (ECF No. 16) at pp. 7-9. Additionally, Plaintiff asks that "Officer John Doe be warned against such actions in the future." Id. at p. 9. --------
It is procedurally improper for Plaintiff to file a "motion to dismiss" his complaint. Rather, the proper procedure for a Plaintiff to voluntarily dismiss his case is by filing a Notice of Voluntary Dismissal under Federal Rule of Civil Procedure 41. However, because filings made by pro se parties are held to a "less stringent" standard than those formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 521 (1972), and must be "liberally construed[,]" Erickson v. Pardus, 551 U.S. 89, 94 (2007), it is respectfully recommended that the court construe Plaintiff's self-styled "motion to dismiss" as a Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) and approve dismissal of this action with prejudice.
Alternatively, it is respectfully recommended that Plaintiff's motion to dismiss be denied, and Plaintiff be provided the opportunity to submit a proper Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). See Exhibit A (Form Notice of Voluntary Dismissal). Should the district court provide Plaintiff with this opportunity, Plaintiff shall execute the Notice of Voluntary Dismissal and send to counsel for Defendants for signature. Thereafter, counsel for Defendant may send to the court for filing.
III. CONCLUSION
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until May 28, 2019 to file objections to this report and recommendation. Plaintiff, as an unregistered ECF user, must submit his objections by 5/30/2019. Unless Ordered otherwise by the District Judge, responses to objections are due June 10, 2019. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: 5/13/2019
Respectfully submitted,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: Honorable Cathy Bissoon
United States District Judge
via electronic filing