Cherry v. NH Department of Corrections, Commissioner et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Cherry
v. 	Case No. 18-cv-565-SM
New Hampshire Department of
Corrections Commissioner
Helen Hanks et al.
REPORT AND RECOMMENDATION
David Cherry, a current inmate at the New Hampshire State
Prison (“NHSP”), has moved to voluntarily dismiss this action
without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(2). 	Because the defendants1 have not shown that such
dismissal would unfairly prejudice them, the court recommends
that the district judge grant Cherry’s motion.
I. 	BACKGROUND
Cherry filed this action, pursuant to 42 U.S.C. § 1983, in
June 2018. 	The complaint asserts that the defendants violated
Cherry’s Eighth Amendment right to be free from cruel and
unusual punishment, and are liable for negligence under state
law, by failing to protect him from harm while he was
1 	The defendants are Helen E. Hanks, Commissioner, New
Hampshire Department of Corrections (“DOC”); Sarah M.
Provencher, DOC Classifications Administrator; Jon H. Fouts,
Chief of Security, NHSP; and Michael A. Zenk, (former) Warden,
NHSP.
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incarcerated at the NHSP. 	After the claims passed muster under
preliminary review, see LR 4.3(d)(1), the defendants moved to
dismiss for failure to state a claim upon which relief can be
granted. 	The court denied their motion, and the defendants
answered the complaint, in June 2019.
The following month, the court held a preliminary pretrial
conference. 	With the parties’ consent, the court bifurcated
discovery and summary judgment to focus first on the potentially
dispositive issue of exhaustion of the administrative remedies
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a). 	Discovery for this phase of the litigation is
scheduled to close on February 15, 2020, with the defendants’
summary judgment motion due on April 1, 2020.
On October 29, 2019, Cherry filed the instant motion to
voluntarily dismiss his suit. 	See Doc. No. 38. 	The defendants
partially objected on the ground that any dismissal should be
with prejudice. 	See Doc. No. 39. 	According to the defendants’
Statement on Status of Discovery filed on December 17, 2019,
thus far they have produced “all of the inmate request forms,
grievance forms, and disciplinary records pertinent to the
pending claims in this case.” 	Doc. No. 41 at 1. 	The defendants
state that, in light of the instant motion, a scheduled
deposition of Cherry was cancelled, and no further discovery has
taken place. 	Id.
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II. 	STANDARD OF REVIEW
Where the defendants have answered the complaint or moved
for summary judgment, and not all parties stipulate to the
dismissal, “an action may be dismissed at the plaintiff’s
request only by court order, on terms that the court considers
proper.” 	Fed. R. Civ. P. 41(a)(2). 	Except when the court’s
order states otherwise, a dismissal under Rule 41(a)(2) is
without prejudice. 	Id. 	Therefore, “dismissal without prejudice
is the norm, ‘unless the court finds that the defendant will
suffer legal prejudice.’” 	Colón Cabrera v. Esso Std. Oil. Co.
(P.R.), 723 F.3d 82, 87 (1st Cir. 2013) (quoting P.R. Mar.
Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)). 	“The
mere prospect of a second lawsuit does not constitute such
prejudice.” 	Id. (citing Doe v. Urohealth Sys., Inc., 216 F.3d
157, 160 (1st Cir. 2000)); see also Cason v. P.R. Elec. Power
Auth., 770 F.3d 971, 976 (1st Cir. 2014) (“[A] district court
should grant a motion for voluntary dismissal unless a defendant
can show that it would suffer some plain legal prejudice as a
result thereof, as opposed to facing the mere prospect of a
second lawsuit.”).
The factors that courts consider in determining whether
dismissal without prejudice is warranted include: (1) the
defendant’s efforts and expenses incurred in the litigation; (2)
excessive delay and lack of diligence by the plaintiff in
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prosecuting the action; (3) the legitimacy of the explanation
given for the need to take a dismissal; and (4) whether the
defendant filed a motion for summary judgment. 	Colón Cabrera,
723 F.3d at 88; Doe, 216 F.3d at 160. 	But there is no “mandate
that each and every such factor be resolved in favor of the
moving party before dismissal is appropriate.” 	Doe, 216 F.3d at
160 (internal quotation marks omitted). 	Rather, the factors are
“simply a guide for the trial judge, in whom the discretion
ultimately rests.” 	Id. (internal quotation marks omitted).
III. ANALYSIS
The key issue is whether the defendants would suffer legal
prejudice if Cherry is allowed to voluntarily dismiss this
action. 	Analyzing the relevant factors, the court finds no such
prejudice here.
First, the court is not persuaded that the defendants
expended significant resources so far to litigate this case.
Although the case was filed over 18 months ago, the litigation
is still at an early stage. 	Cherry moved for voluntary
dismissal three and a half months before the close of discovery
in phase one of the action, and five months before the
defendants’ deadline to file for summary judgment on the issue
of PLRA exhaustion. 	The discovery completed thus far has been
limited to a document production by the defendants, with the
single scheduled deposition cancelled in light of the pendency
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of the instant motion. 	The record, therefore, suggests that the
defendants have not invested a considerable amount of time and
resources defending this case to date, which weighs in favor of
dismissal without prejudice.
Second, a review of the docket fails to reveal any evidence
to suggest that Cherry has been dilatory or unreasonable in the
conduct of the case. 	And the defendants do not argue otherwise.
Third, although Cherry has not proffered a reason for
seeking dismissal, his recent filing suggests that he is
currently living in transitional housing and understandably
needs to focus on his reentry into society following
incarceration. 	See Doc. No. 42. 	Certainly, the court finds no
reason to suspect that the instant motion was filed for an
improper purpose. 	For example, there is no potential for an
imminent adverse ruling that Cherry might be seeking to avoid.
See Colón Cabrera, 723 F.3d at 88. 	Therefore, this factor is
neutral, at worst, and at best, favors dismissal without
prejudice.
Fourth, Cherry sought dismissal before the defendants
incurred the cost of filing a summary judgment motion. 	In fact,
the deadline for summary judgment is still months away.
In sum, this is not a case in which the plaintiff proposes
“to dismiss the case at a late stage of pretrial proceedings, or
seeks to avoid an imminent adverse ruling.” 	Colón Cabrera, 723
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F.3d at 88. 	Although the defendants claim they have already
invested “substantial time and resources” in the litigation,
Doc. No. 39 at 1, those efforts do not appear extraordinary
given the early stage of the case. 	Therefore, the relevant
factors, taken together, support dismissal without prejudice.
IV. 	CONCLUSION
In light of the factors identified by the First Circuit in
Doe, 216 F.3d at 160, and given the totality of the
circumstances of this case, it is appropriate to grant Cherry’s
motion to dismiss without prejudice (Doc. No. 38).
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
___________________
Andrea K. Johnstone
United States Magistrate Judge
January 21, 2020
cc: 	David Cherry, pro se
Lawrence Edelman, Esq.
Seth Michael Zoracki, Esq.
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