United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE
civil rights action is before the Court on Sheriff Kelvin
Williams' motion for summary judgment, Doc. #46; and
Gregory Marque Hillie's motion for voluntary dismissal,
about May 24, 2017, Gregory Marque Hillie, an inmate at
Bolivar County Regional Correctional Facility, filed a pro se
complaint in this Court against “Sheriff Kelvin
William, ” “Government Phil Bryant” and the
“Federal Government.” Doc. #1. On August 11,
2017, following a Spears hearing, United States
Magistrate Judge David A. Sanders issued a Report and
Recommendation construing Hillie's complaint as
requesting that criminal charges be instituted against the
defendants and asserting claims sounding under § 1983,
the Hate Crimes Prevention Act (“HCPA”), and the
Americans with Disabilities Act (“ADA”). Doc.
#14. The Report and Recommendation recommended that (1) the
Federal Government and Bryant be dismissed; (2) the HCPA
claim be dismissed; (3) the § 1983 claim be dismissed to
the extent it is premised on an alleged violation of the
right to speedy trial; (4) the request to procure criminal
charges be dismissed; (5) the ADA individual capacity claim
against Williams be dismissed; and (6) process issue against
Williams on Hillie's remaining claims. Id. at 4.
On November 3, 2017, this Court adopted the Report and
Recommendation. Doc. #35.
February 1, 2018, Williams filed a motion seeking summary
judgment as to Hillie's denial of medical care claim
based on alleged denials of physical therapy and pain
management. Doc. #46. Hillie did not respond to the motion
for summary judgment. However, on or about February 9, 2018,
Hillie filed a document captioned “Motion Comparison,
” which is in substance a motion for voluntary
dismissal of the medical care claim. Doc. #49.
Motion for Voluntary Dismissal
motion for voluntary dismissal states in full: “Goorgia
and United States of America Consitutions Amendments bills of
rights Dismis da physcial therapy and pain specialy from
lawsuit with your permission.” Doc. #49.
as here, a plaintiff fails to specify whether a requested
voluntary dismissal is with or without prejudice, “the
matter is left to the discretion of the lower court.”
Williams v. Peralta Cmty. Coll. Dist., 227 F.R.D.
538, 539 (N.D. Cal. 2005); Dodge-Regupol, Inc. v. RB
Rubber Prods., Inc., 585 F.Supp.2d 645, 652 (M.D. Pa.
2008). In exercising this discretion, a court should
consider: “(1) the defendant's effort and expense
in preparing for trial, (2) excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, and (3) insufficient explanation of the need to take
a dismissal.” Williams, 227 F.R.D. at 540
(alterations omitted); see also Cooke v. Meritor,
Inc., No. 4:16-cv-54, 2018 WL 2223324, at *1 (N.D. Miss.
May 15, 2018) (to determine whether defendant would suffer
plain legal prejudice from voluntary dismissal, court must
consider “(1) the defendant's effort and the
expense involved in preparing for trial, (2) excessive delay
and lack of diligence on the part of the plaintiff in
prosecuting the action, (3) insufficient explanation of the
need to take a dismissal, and (4) the fact that a motion for
summary judgment has been filed by the defendant.”).
this case has been pending for more than a year. Discovery is
complete, and the defendants have filed a motion for summary
judgment. Furthermore, Hillie has offered no reason for the
requested dismissal. Under these circumstances, a dismissal
without prejudice is clearly inappropriate. However, in light
of Hillie's pro se status, the Court declines to construe
his motion as seeking dismissal with prejudice. See
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 322
n.3 (5th Cir. 2009) (courts must “construe pro
se filings liberally”). Accordingly, the Court, in
the exercise of its discretion, denies Hillie's motion
for voluntary dismissal of his medical care claim.
Motion for Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care Ltd. v. Groupo Rimar,
844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and material if
its resolution could affect the outcome of the action.”
Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 226 (5th Cir. 2015) (quotation marks omitted). On a
motion for summary judgment, a court must “consider the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in its favor.”
Edwards v. Cont'l Cas. Co., 841 F.3d 360, 363
(5th Cir. 2016).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs, L.L.C.
v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir.
2015) (quotation marks and alterations omitted). If the
moving party satisfies this burden, “the non-moving
party must go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id.
(quotation marks omitted). “Where the nonmoving party
bears the burden of proof at trial, the moving party
satisfies this initial burden by demonstrating an absence of
evidence to support the nonmoving party's case.”
Celtic Marine Corp. v. James C. Justice Cos., Inc.,
760 F.3d 477, 481 (5th Cir. 2014).
is a pretrial detainee who has been housed at the Bolivar
County Sheriff's Department jail since August 10, 2015.
Doc. #46-1 at 5-6. Due to a gunshot wound he suffered in 1990
or 1991, ...