IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30822
Summary Calendar
BILLY SINCLAIR,
Plaintiff-Appellant,
versus
RONALD BONVILLIAN; JAMES PATIN;
HENRY GOINES; C. MARTIN LENSING, Warden,
Defendants-Appellees.
Appeal from the United States District Court for the
Middle District of Louisiana
(95-CV-1966)
January 16, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Billy Sinclair (Sinclair), a Louisiana
prisoner, filed this suit under 42 U.S.C. § 1983 against various
state officials seeking, inter alia, declaratory relief and money
damages. When the complaint was filed, Sinclair paid the full
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
filing fee. Nothing whatever transpired in the suit thereafter
until Sinclair filed his "Notice of Voluntary Dismissal," seeking
dismissal under Fed. R. Civ. P. 41(a), noting that none of the
adverse parties had been served. The notice also states that
"essentially the same issues raised in the matter are being
litigated in state court." The notice does not state or imply that
the dismissal is not without prejudice. Four days later, the
district court endorsed an order on this notice stating "motion to
dismiss with prejudice is granted, reserving to plaintiff and
defendants any rights either may have in state court." The
district court subsequently refused to change this disposition,
stating "[t]his Court will not allow a dismissal without prejudice
only to have the suit refiled in the future." Sinclair appeals,
contending that he had an absolute right to dismissal without
prejudice. We agree, and accordingly reverse.
At no time has any party adverse to Sinclair ever served an
answer or a motion for summary judgment in this case. Indeed,
Sinclair is the only party who has in any way either appeared or
filed any paper, motion, or pleading whatsoever in the case, and no
process has even been issued for any party. There is nothing to
suggest that Sinclair had ever previously dismissed any other suit
involving any claim included in this suit. This suit is not any
kind of a class action and does not involve a receiver (as
referenced in Fed. R. Civ. P. 23(e) and Fed. R. Civ. P. 66), and
accordingly, under these circumstances, Sinclair had an absolute
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right to termination of the action without prejudice under the
provisions of Fed. R. Civ. P. 41(a)(1). "The Court had no power or
discretion to deny" Sinclair's "right to dismiss or to attach any
condition or burden to that right." Williams v. Ezell, 531 F.2d
1261, 1264 (5th Cir. 1976). "We have consistently held that rule
41(a)(1) means what it says." Carter v. United States, 547 F.2d
258, 259 (5th Cir. 1977). The district court's concern that the
suit might be refiled does not allow it to disregard the mandatory
provisions of Rule 41(a)(1). Moreover, the Rule to some extent
addresses these concerns by the provision of its last sentence that
"the dismissal is without prejudice, except that a notice of
dismissal operates as an adjudication upon the merits when filed by
a plaintiff who has once dismissed in any court of the United
States or of any state an action based on or including the same
claim."
Accordingly, the dismissal with prejudice is reversed, and
judgment is here rendered that the cause is dismissed without
prejudice (subject to the hereinabove quoted exception contained in
the last sentence of Rule 41(a)(1)).
REVERSED and RENDERED
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