United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan Chief Judge United States District Court
confined at Pinckneyville Correctional Center, Damarco Watts
filed suit in this Court under 42 U.S.C. 1983, alleging
violations of his federally-secured constitutional rights -
specifically excessive force and denial of medical care.
Watts originally sued a single Defendant - corrections
officer Monroe (or “C/O Monroe”).The case was
assigned to the Honorable J. Phil Gilbert who, on threshold
review of Watts' pro se complaint, allowed two claims to
proceed against Monroe.
complaints followed, which added various defendants (see Doc.
31, 48). The first amended complaint added three John Doe
defendants. The second amended complaint contained nine
defendants (it appears that as part of that amendment, the
John Does were replaced with named individuals). Defendants
were served and answered or responded to the second amended
March 2016, counsel was recruited and entered for Plaintiff
Watts. The Magistrate Judge assigned to the case (Judge
Frazier) retired, and the District Judge assigned to the case
(Judge Gilbert) transferred the case off his docket. The case
has been reassigned to the undersigned District Judge and
Magistrate Judge Reona J. Daly.
before the Court is a January 6, 2017 “Stipulation of
Dismissal” which seeks to dismiss without prejudice
Plaintiff's claims against two defendants - Jason Cowell
and Thomas Duvall (Doc. 96). The motion does not cite the
rule under which dismissal is sought, but it reads as if
premised on Federal Rule of Civil Procedure 41(a). Rule 41(a)
authorizes voluntary dismissals under certain circumstances.
For instance, subsection (a)(1)(A) permits dismissal without
a court order by two methods: (i) the plaintiff files a
notice of dismissal before the opposing party serves an
answer or summary judgment motion; or (ii) the plaintiff
files a stipulation of dismissal signed by all parties who
the rule expressly addresses dismissal of
"actions." In other words, Rule 41(a) is used to
dismiss entire cases not certain parties or claims. In
Taylor v. Brown, 787 F.3d 851, 857-58 (7th Cir.
2015), the Court of Appeals for the Seventh Circuit held that
Rule 41(a)(2) was not the appropriate procedural vehicle for
a plaintiff (who, at the invitation of the district court,
had moved to voluntarily dismiss a single claim against a
single defendant) to achieve dismissal of part of his case.
Instead, the district court should have granted the plaintiff
leave to file an amended complaint which dropped that claim.
The Seventh Circuit explained, id.:
Voluntary dismissal by court order under Rule 41(a)(2) allows
the plaintiff to dismiss “an action” on
“terms that the court considers proper.”
FED.R.CIV.P. 41(a)(2). Although some courts have held
otherwise, we've said that Rule 41(a) “does not
speak of dismissing one claim in a suit; it speaks of
dismissing ‘an action'-which is to say, the whole
case.” Berthold Types Ltd. v. Adobe Sys. Inc.,
242 F.3d 772, 777 (7th Cir. 2001); see also
Nelson v. Napolitano, 657 F.3d 586, 588 (7th Cir.
2011) (noting that “the purpose of Rule 41(a)(1) is to
limit a plaintiff's ability to dismiss an action”
(citing Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 397, … (1990))). Berthold Types and
Nelson both concerned Rule 41(a)(1)(A), which allows
for voluntarily dismissal without a court order,
rather than 41(a)(2), but both provisions refer
exclusively to “actions”- which, as Berthold
Types said, means the entire case…. Rule 41(a)
should be limited to dismissal of an entire action….
Instead, the court should have offered Taylor the opportunity
to amend his pleadings under Rule 15(a). Like Rule 41(a),
Rule 15(a) allows a plaintiff to amend his
complaint-including by adding or dropping parties and
claims-as a matter of right in some situations and by court
order in others, and “[t]he court should freely give
leave when justice so requires.” FED.R.CIV.P. 15(a)(2).
dismissals and joint stipulations are encouraged but, given
the holding in Taylor, the Court cannot find that
the January 6, 2017 stipulation accomplished the desired end
- voluntary dismissal of Plaintiff's claims against two
of the nine defendants herein. Accordingly, the undersigned
District Judge GRANTS Plaintiff leave to file a Third Amended
Complaint, thereby dismissing his claims against Cowell and
Duvall. The Third Amended Complaint shall be filed by January
course, filing of the new complaint will render moot any
motions directed against the current complaint, including the
July 5, 2016 Rule 12(b)(6) motion (Doc. 60) and the September
28, 2016 Pavey-based motion (Doc. 87). Once the new
complaint is on file, those motions will need to be re-filed
and re-briefed, which could affect the existing Scheduling
Order (Doc. 21, as amended). The case currently has a March
9, 2017 discovery deadline, a March 30, 2017 dispositive
motion deadline, and an October 2, 2017 jury trial date
before the undersigned. The final pretrial conference will be
held by Judge Daly, who will set that date by separate
notice, once the Third Amended Complaint has been filed.
parties' convenience, should they wish to consent to full
disposition of the case by Judge Daly (who enjoys a more
flexible trial schedule and more readily can accommodate
requests for adjustments or extension of the discovery/trial
schedule), the Clerk's Office shall provide to all
counsel of record a copy of the consent form with this Order.
This is mentioned as an option only; no adverse consequences
result from declining to consent.