United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
who is currently an inmate at Smith State Prison in
Glennville, Georgia, filed this action under 42 U.S.C. §
1983 on February 6, 2017, while incarcerated in an
unspecified Georgia Department of Corrections'
(“GDC”) facility. Doc. 1. It originally appeared
that Plaintiff intended to contest conditions of his
confinement at Georgia State Prison in Reidsville, Georgia.
Id.; Doc. 16 at 1. The Court granted Plaintiff leave
to proceed in forma pauperis. Doc. 9. However, on
May 3, 2018, the Court deferred the requisite frivolity
review and instead instructed Plaintiff to submit an amended
Complaint on this Court's form for prisoner-plaintiffs
seeking to file a § 1983 action. Doc. 16. Plaintiff did
not submit a timely reply, and on June 26, 2018, the
Magistrate Judge recommended the Court dismiss
Plaintiff's cause of action for failure to prosecute and
failure to follow this Court's Orders. Doc. 17.
Court received Plaintiff's reply 15 days after the time
for objections expired. Doc. 18. Rather than dismiss the
response entirely, the Court, in an Order issued July 31,
2018, provided Plaintiff a second opportunity to submit an
amended Complaint on the Court's proper
form. Doc. 19. The Court ordered Plaintiff to
file his properly amended Complaint by August 14, 2018 or
face dismissal without prejudice. Id. at 2. The
Court did not receive Plaintiff's responsive pleading
until August 30, 2018, around two weeks after Plaintiff's
time to respond expired. Doc. 20.
Plaintiff's one-page response is not entirely clear, he
states that “some mix up” occurred. Id.
The Plaintiff come as pro se counsel to respon to Magistrate
Judge Report and Recommendation to case: 6-17cv78. I
Petitioner do know of this case because one Warden Antoine
Caldwell et al not at Georgia State Prison in Ware Stat Ware
Co State Prison. This some mix up on someone party. And
Plaintiff is currently incarcerated at Smith State Prison
Glenville Georgia. Plaintiff have ever hear of this case, and
at this do not have unstand of this case. Pless remove this:
Sing by pro se counsel Levi Arthur Fedd - 283507 - Smith
State Prison Mistake case: The Petition have case in
Court recognizes the long-standing principle that the
pleadings of unrepresented parties are held to a less
stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys . . . .”) (quoting
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003)). “Federal courts sometimes will ignore the legal
label that a pro se litigant attaches to a motion
and recharacterize the motion in order to place it within a
different legal category.” Retic v. United
States, 215 Fed.Appx. 962, 964 (11th Cir. 2007) (quoting
Castro v. United States, 540 U.S. 375, 381 (2003)).
Federal courts “may do so in order to avoid an
unnecessary dismissal, to avoid inappropriately stringent
application of formal labeling requirements, or to create a
better correspondence between the substance of a pro
se motion's claim and its underlying legal
basis.” Id. (quoting Castro, 540 U.S.
at 381-82). In accordance with these principles, the Court
construes Plaintiff's responsive filing as notice of his
voluntary dismissal of the above-styled action. The Court
finds that Plaintiff represented that he has another case
pending against Defendant Caldwell in another court, and that
Plaintiff's request to “remove this” and his
reference to a “mistake case” both refer to this
Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, a
plaintiff may voluntarily dismiss his own case without leave
of court “by filing a notice of 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). The
Court has not yet ordered the United States Marshal serve
Defendants in this action, nor has any Defendant filed an
Answer, motion for summary judgment, or, in fact, any type of
pleading at all. Thus, Plaintiff's August 30 pleading,
construed as a notice of dismissal, effectively dismisses
this action without prejudice. I, therefore,
RECOMMEND the Court GRANT
Plaintiff's Motion for Voluntary Dismissal,
DISMISS without prejudice Plaintiff's
Complaint, and DIRECT the Clerk to
CLOSE this case and enter the appropriate
judgment of dismissal.
Court ORDERS any party seeking to object to
this Report and Recommendation to file specific written
objections within 14 days of the date on which this Report
and Recommendation is entered. Any objections asserting that
the Magistrate Judge failed to address any contention raised
in the Complaint must also be included. Failure to do so will
bar any later challenge or review of the factual findings or
legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S.
140 (1985). A copy of the objections must be served upon all
other parties to the action.
receipt of Objections meeting the specificity requirement set
out above, a United States District Judge will make a de
novo determination of those portions of the report,
proposed findings, or recommendation to which objection is
made and may accept, reject, or modify in whole or in part,
the findings or recommendations made by the Magistrate Judge.
Objections not meeting the specificity requirement set out
above will not be considered by a District Judge. A party may
not appeal a Magistrate Judge's report and recommendation
directly to the United States Court of Appeals for the
Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.
The Court DIRECTS the Clerk of Court to
serve a copy of this Report and Recommendation upon
ORDERED and REPORTED and
 The record before the Court shows that
the Clerk's Office mailed a copy of the § 1983