Rosario v. Strawn
| Decision Date | 30 September 2020 |
| Docket Number | Civil Action No. 2:19-cv-01040 |
| Parties | KEITH ROSARIO, Plaintiff, v. EDWARD STRAWN, WARDEN; DEVYN BREESE, COUNSELOR; CAPTAIN RESTANIO, DONALD E. WAUGH, DEPUTY WARDEN; CHRISTOPHER M. CAIN, DEPUTY WARDEN; MAJOR CODDINGTON, SERGEANT POLPECK, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Before the Court is a Motion to Dismiss filed by Defendant Devyn Breese ("Breese") (ECF No. 53) and a Partial Motion to Dismiss filed by Defendants Edward Strawn ("Strawn"), Christopher M. Cain ("Cain"), Donald E. Waugh ("Waugh"), Major David Coddington ("Coddington"), and Captain Jamie Lynn Restanio ("Restanio") (ECF No. 57).1 The Moving Defendants seek dismissal of claims brought against them in the operative Second Amended Complaint (the "Complaint")2 (ECF No. 51) filed by Plaintiff Keith Rosario ("Rosario") in this matter. Also before the Court is a "Motion to Dismiss Without Prejudice" (ECF No. 97) filed by Rosario.
The Honorable Maureen P. Kelly issued a Report and Recommendation3 (ECF No. 88) in this matter on July 29, 2020. Judge Kelly's Report and Recommendation recommends that the Court grant in part and deny in part the Partial Motion to Dismiss brought by Strawn, Cain, Waugh, Coddington, and Restanio. R & R 25, ECF No. 88. The Report and Recommendation recommends that the Court grant the Partial Motion to Dismiss as to Counts A, C, D, E, F, and G. Id. The Report and Recommendation further recommends that the Court dismiss Rosario's claims against Strawn, Cain, Waugh, Coddington, and Restanio at Counts A, C, E, F, and G with prejudice,4 and that the Court dismiss Count D against these Defendants without prejudice and with leave to amend to the extent that the identified pleading deficiencies can be cured. Id. Judge Kelly's Report and Recommendation also recommends that this Court deny the Partial Motion to Dismiss with respect to Count B, which sets forth a claim for retaliation in violation of the First Amendment against Strawn, Cain, and Waugh, because the Complaint sufficiently states a claim for retaliation at this stage of the proceedings. Id. at 14; 25.
With respect to Breese's Motion to Dismiss, the Report and Recommendation recommends that the Court grant the Motion as to Rosario's claims against Breese at Counts C, D, and G. R & R 25, ECF No. 88. The Court notes that the Conclusion section of the Report and Recommendation recommends dismissal with prejudice of "all claims" brought against Breese. Id. In analyzing Rosario's claim for bystander liability under the Fourteenth Amendment (Count C) against Breese, the Report and Recommendation provides that the claim should be dismissed because the "duty to intervene [presented] in this situation does not extend to medical providers." Id. at 23. The Report and Recommendation further provides: Id. As such, the Court interprets the Report and Recommendation to recommend dismissal with prejudice of the claims set forth at Counts C (bystander liability), D (conspiracy), and G (Monell claim) as currently pled against Breese, but with leave to amend the Complaint as to Breese to potentially set forth a claim for failure to provide medical care under the Eighth Amendment.5
Judge Kelly's Report and Recommendation informed the parties that they were permitted to file written objections to the Report and Recommendation by August 12, 2020 for Registered ECF Users and August 17, 2020 for Unregistered ECF Users. R & R 25, ECF No. 88. On August 11, 2020, Rosario sought an extension of the deadline to file objections, see Mot. 1, ECF No. 91, and Judge Kelly entered an Order on August 12, 2020 granting an extension of the deadline for the filing of objections to September 17, 2020, see Order, ECF No. 92. To date, neither the Moving Defendants nor Rosario have filed objections to the Report and Recommendation. Rather, onSeptember 21, 2020, Rosario filed his "Motion to Dismiss Without Prejudice," which is dated September 14, 2020.
In his "Motion to Dismiss," Rosario asserts that he wishes to partially withdraw the Complaint without prejudice because the Complaint is "unartfully plead" and because "a state proceeding is proper for the withdrawn claims." Pl.'s Mot. ¶ 3(a)-(b), ECF No. 97. Rosario's Motion does not challenge or object to the recommendations set forth in Judge Kelly's Report and Recommendation, but rather seemingly acknowledges that the Complaint is insufficient as currently pled. Rosario requests dismissal, without prejudice, of Counts A, C, D, E, F, and G of the Complaint, id. at ¶ 4-5, i.e. each of the Counts which Judge Kelly's Report and Recommendation recommends should be dismissed in some manner with respect to the Moving Defendants.6 Rosario requests to proceed before this Court as to only his First Amendment retaliation claim (Count B) against Strawn, Cain, and Waugh, which arises out of Rosario's alleged transfers to two different jails as alleged retaliation for his threat to file a lawsuit against prison staff. Id. at ¶ 6. While pro se pleadings and filings are held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), these two clear requests set forth in Rosario's "Motion to Dismiss Without Prejudice," when considered in conjunction, can only reasonably be interpreted to request the dismissal of all claims in the Complaint against all Defendants except for Count B, which is brought against only Strawn, Cain, and Waugh in relation to alleged retaliatory transfers to other jails.
With respect to a report and recommendation filed by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(C), a district court must make a de novo determination of those portions of thereport to which objections are made. 28 U.S.C. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.1987). The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id. The Court notes that "[t]he magistrate judge's report and recommendation does not have the force of law, it being merely a recommendation, unless and until the district court enters an order accepting or rejecting it." Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998) (citing United Steelworkers of America v. New Jersey Zinc Co., Inc., 828 F.2d 1001, 1005 (3d Cir.1987)).
Rosario's filing of a "Motion to Dismiss Without Prejudice," as opposed to objections, with respect to less than all of his claims presents a complicated procedural scenario. Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that, "[s]ubject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute," a plaintiff may, without a court order, dismiss "an action" 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). Because Rosario's "Motion to Dismiss Without Prejudice" seeks to "withdraw" certain of his claims without prejudice, see Pl.'s Mot. ¶ 3, and because no Defendant has filed an answer or motion for summary judgment in this matter,7 the Court finds that Rosario's "Motion to Dismiss Without Prejudice" should be construed as a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). With respect to notices of voluntary dismissal, the United States Court of Appeals for the Third Circuit has explained:
Three key aspects of Rule 41(a)(1)(A)(i) control our analysis. First, a filing under the Rule is a notice, not a motion. Its effect is automatic: the defendant does not file a response, and no order of the district court is needed to end the action. Second, the notice results in a dismissal without prejudice (unless it states otherwise), as long as the plaintiff has never dismissed an action based on or including the same claim in a prior case. Third, the defendant has only two options for cutting off the plaintiff's right to end the case by notice: serving on the plaintiff an answer or a motion for summary judgment.
In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 165 (3d Cir. 2008) (footnote omitted). With respect to Rule 41(a)(1)(A)(i), the Third Circuit further explained:
The Rule "affixes a bright-line test to limit the right of dismissal to the early stages of litigation," [Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065 (3d Cir. 1987)], which Id. (quoting Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir.1983)). Up to the "point of no return," dismissal is automatic and immediate—the right of a plaintiff is "unfettered," Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). A timely notice of voluntary dismissal invites no response from the district court and permits no interference by it.
In re Bath & Kitchen Fixtures, 535 F.3d at 165.
Because the Defendants in this action have not filed answers or motions for summary judgment, Rosario's notice of voluntary dismissal is timely. Had Rosario moved to dismiss all of the claims in this action, and not just those that Judge Kelly's Report and Recommendation recommends should be dismissed, this Court's analysis would be at an end.8 The...
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