United States District Court, M.D. Louisiana
ALONZO D. GONZALES # 560945
A. JACKSON, CHIEF JUDGE.
the Court are Plaintiffs Motion to Request for Dismissal
of Pending 42 U.S.C. § 1983 (R. Doc. 7) and
Plaintiffs "Amended Complaint" (R. Doc.
se Plaintiff, an inmate incarcerated at the Louisiana
State Penitentiary ("LSP"), Angola, Louisiana,
filed this action pursuant to 42 U.S.C. § 1983 against
Lt. Jeffrey Franklin, alleging that Defendant Franklin
violated Plaintiffs constitutional rights on August 15, 2015
by subjecting Plaintiff to excessive force in the form of an
application of chemical irritant spray.
March 9, 2017, Plaintiff filed the instant Motion to
Request for Dismissal. The Court interprets this
Motion to be a notice of voluntary dismissal filed
pursuant to Rule 4l(a)(1)(A)(i) of the Federal Rules of Civil
Procedure. Specifically, Plaintiff states in the
Motion that he is "willing to drop/dismiss
th[is] suit, " and his stated reason is that he has
determined that Defendant Franklin's actions in
subjecting Plaintiff to a chemical agent on August 15, 2015
"were in the compliance of his job performance to
maintain the safety and security of the penal institution,
" and that Defendant Franklin "could not be held
liable for his actions in the performance of his job."
to Fed.R.Civ.P. 41(a)(1)(A)(i), a plaintiff is authorized to
"dismiss an action without a court order by filing ... a
notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment." It has been
recognized by the courts that the filing of a notice of
voluntary dismissal under Rule 41(a)(1)(A)(i) effects a
dismissal of the proceedings without further action by the
Court. See Perkins v. Johnson, 118 Fed.Appx. 824,
825 (5th Cir. 2004) (finding that "[u]nder Fed.R.Civ.P.
41(a), the voluntary dismissal of an action completely
terminates the litigation, without further order by the
district court"); Long v. Board of Pardons and
Paroles of Texas, 725 F.2d 306 (5th Cir. 1984) (same).
Accordingly, the dismissal of the above-captioned proceeding
became effective on the date that Plaintiff filed the instant
Motion to Request for Dismissal, and no order
granting Plaintiffs Motion is necessary or
warranted. See SmallBizPros, Inc. v. MacDonald, 618
F.3d 458 (5th Cir. 2010) (concluding that a Court's
Order granting a plaintiffs request for voluntary
dismissal under Rule 41(a)(1) is of no legal consequence).
Therefore, because the dismissal of this proceeding occurred
by operation of law on the date Plaintiff filed the instant
Motion, and because no order is required to
effectuate the voluntary dismissal, Plaintiffs Motion to
Request for Dismissal (R. Doc. 7) shall be denied as
to a consideration of Plaintiffs so-called "Amended
Complaint" (R. Doc. 8), which was filed
approximately a month after the filing of the voluntary
dismissal, Plaintiff requests therein that the voluntary
dismissal be "voided" because he was
"bribed" by Defendant to agree thereto.
Specifically, Plaintiff asserts that Defendant Franklin
entered into an "informal negotiation" with
Plaintiff, pursuant to which Defendant Franklin agreed to
immediately reinstate Plaintiffs visiting privileges at LSP
in exchange for Plaintiffs execution of the voluntary
dismissal. Plaintiff further asserts that Defendant Franklin
advised Plaintiff that pursuant to prison rules, the formal
dismissal needed to be effected first, after which Defendant
would reinstate Plaintiffs visiting privileges.
Notwithstanding, Plaintiff complains that, as of the date of
filing of the "Amended Complaint, " and
despite Plaintiffs execution of the voluntary dismissal,
Defendant Franklin had not fulfilled his part of the
agreement and had not reinstated Plaintiffs visiting
privileges. Accordingly, Plaintiff asserts that the voluntary
dismissal was induced through "brib[ery]" and
through the exploitation of Plaintiffs "vulnerability,
" and he requests that the voluntary dismissal be voided
or, in the alternative, that judgment be awarded in his favor
enforcing the settlement agreement.
this Court does not have jurisdiction to enforce the alleged
settlement agreement between Plaintiff and Defendant
Franklin. Specifically, the United States Supreme Court has
held that a federal district court has jurisdiction to
enforce a settlement agreement only when the obligation to
comply with the agreement has been made a part of a
court's order of dismissal, either by virtue of a
provision in the order specifically retaining jurisdiction or
by incorporating the settlement agreement's terms into
the order, neither of which was done in the instant case.
See Kokkomen v. Guardian Life Ins. Co., 511 U.S. 375
(1994); Hospitality House, Inc. v. Gilbert, 298
F.3d. 424, 431-32 (5th Cir. 2002). Further, considering that
the filing of Plaintiffs notice of voluntary dismissal had
the effect of completely terminating this proceeding, this
Court does not have the authority to nullify or void the
dismissal that has already taken effect. Notwithstanding, it
is recognized that the Court does retain limited jurisdiction
over a voluntarily dismissed action to entertain a subsequent
motion for relief under Fed.R.Civ.P. 60(b). See Yesh
Music v. Lakewood Church, 727 F.3d 356, 360-61 (5th Cir.
2013); Castillo v. Munoz, 2015 WL 1020762 (W.D. Tex.
Mar. 6, 2015). Accordingly, in the interest of justice, the
Court will interpret Plaintiffs so-called "Amended
Complaint" to be a request for relief under Rule
60(b) of the Federal rules of Civil Procedure provides that
"[o]n motion and just terms, the court may relieve a
party ... from a final judgment, order, or proceeding"
for several reasons, among which are "fraud ...,
misrepresentation, or misconduct by an opposing party."
This provision provides a basis for relief where the moving
party presents "clear and convincing evidence" of
the adverse party's fraud, misrepresentation or other
misconduct. See Hesling v. CSX Transp., Inc., 396
F.3d 632, 641 (5th Cir. 2005). The decision to grant or deny
relief under Rule 60(b) lies within the sound discretion of
the district court and will be reversed only for abuse of
that discretion. Id. at p. 638.
Plaintiffs pleading as asserting that Defendant Franklin
engaged in fraud, misrepresentation, or other wrongdoing in
connection with confecting the alleged settlement agreement,
the Court finds that Plaintiff has failed to meet his burden
of proof and has failed to show "clear and convincing
evidence" of such misconduct. Plaintiff has, in fact,
provided no evidence whatsoever and relies entirely upon his
own conclusory assertion (1) that a negotiated settlement was
arrived at between himself and Defendant Franklin; (2) that
the terms of that agreement provided for the
"immediate" reinstatement of Plaintiffs visitation
rights; and (3) that Defendant Franklin has not complied with
the agreement. These conclusory assertions are not sufficient
to support the relief requested. See Walker v.
McCullum, 2008 WL 4186917 (S.D.Miss. Sept. 9, 2008)
("[P]laintiff has failed to provide any evidence
whatsoever regarding the alleged fraud committed by
defendants, merely making the conclusory allegations that the
settlement agreement was based on fraud and misrepresentation
by the defendants because they never intended to comply with
the settlement agreement, and that defendants committed other
unidentified misconduct. This is clearly not enough to
justify ... reopening this case"). See also Rogers
v. Boatright, 670 Fed.Appx. 386 (5th Cir. 2016)
(dismissing an inmate's appeal as frivolous and upholding
the lower court's decision to deny Rule 60(b) relief and
refuse to reopen a voluntarily dismissed case); Perkins
v. Johnson, supra, 118 Fed.Appx. at 825 (5th Cir. 2004)
(dismissing an inmate's appeal as frivolous and upholding
lower court's denial of an inmate's motion to
reinstate his voluntarily dismissed complaint: "It is
not error for a district court to refuse to reactivate a
finally dismissed former action"). In addition, it has
been intimated on several occasions that the appropriate
relief in a situation of this sort is for the complaining
party to pursue a breach of contract action in state court.
See Walker v. McCullum, supra, 2008 WL 4186917 at *1
(noting that "the appropriate remedy for defendants'
alleged breach of the settlement agreement is a breach of
contract action in state court, not a Rule 60(b)(6)
motion"), citing Gonzalez v. Renaudin, 1999 WL
527732, *2 (E.D. La. July 21, 1999)). Accordingly, based on
the foregoing, the Court concludes that Plaintiffs request
for relief pursuant to Rule 60(b) shall be
denied.Therefore, IT IS ORDERED
that Plaintiffs Motion to Request for Dismissal of
Pending 42 U.S.C. § 1983 (R. Doc. 7), which the
Court interprets to be a notice of voluntary dismissal filed
pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), is hereby
DENIED AS MOOT.
IS FURTHER ORDERED that Plaintiffs "Amended
Complaint" (R. Doc. 8), which the Court interprets
to be a request for relief from a final judgment, order, or
proceeding pursuant to Fed.R.Civ.P. 60(b), is hereby DENIED.
Clerk of Court is directed to terminate the above-captioned
proceeding on the Court's Docket, without prejudice.
 The Court further notes that Plaintiff
has not paid the initial partial filing fee ordered by the
Courtpursuantto28U.S.C. § 1915(b). SeeR. Doc. 3. In
fact, in response to the Court's Order directing
Plaintiff to appear and show cause why his Complaint should
not be dismissed for failure to make the required payment,
see R. Doc, 5, Plaintiff has provided documentation
that reflects that he has had available in his inmate
accounts moneys ...