October 8, 2013
JOHN M BALE, Plaintiff,
CHARLES N SCHANDEL et al., Defendant.
REPORT AND RECOMMENDATION
J. RICHARD CREATURA, Magistrate Judge.
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and Magistrate Judge Rules MJR3 and MJR4.
Plaintiff filed a motion for voluntary dismissal of this action (ECF No. 28). In his motion plaintiff asked the Court to "save my rights to file again." The Court called for a response and gave plaintiff the ability to file a reply because this would be a dismissal pursuant to Fed.R.Civ.P. 41(a)(2). A dismissal pursuant to Fed.R.Civ.P. 41(a)(2) is made under terms the Court considers proper.
Defendants responded and object to the Court granting plaintiff "relief apart from a dismissal of his claims." (ECF No. 30). Defendants argued that plaintiff had presented no authority for tolling the running of the statute of limitations ( id. ). Plaintiff did not file a reply.
The Court recommends dismissal of this action without prejudice. This dismissal will not toll the running of the statute of limitations or guarantee that plaintiff will be able to file an action at a later date, but the dismissal itself will not prevent a later filing. Plaintiff will still be charged the full filing fee for this action. See, 28 U.S.C. § 1915(b)(1).
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on November 1, 2013, as noted in the caption.