Martin v. Larson

Philip Lyle Martin, Plaintiff, v. Joshua Larson, Jennifer Witt, Benjamin Rice, Ashley Peterson, L. Lind, Lori Pykkonen, and B. Bahneman, Defendants.

No. 21-cv-412 (ECT/JFD)

United States District Court, D. Minnesota

March 24, 2022

REPORT AND RECOMMENDATION

JOHN F. DOCHERTY, United States Magistrate Judge.

This matter is before the Court on four motions: (1) Defendants B Bahneman, L. Lind, Ashley Peterson, and Benjamin Rice's (“Federal Defendants”) Motion to Dismiss and for Summary Judgment (Dkt. No. 28); (2) Defendant Joshua Larson M.D.'s Motion for Judgment on the Pleadings and for Dismissal Pursuant to Minn. Stat. § 145.682 (Dkt. No 40); (3) Plaintiff Philip Lyle Martin's Motion to Dismiss Without Prejudice (Dkt. No. 54); and (4) Defendant Jennifer Witt, M.D.'s Motion for Judgment on the Pleadings and for Dismissal Pursuant to Minn. Stat. § 145.682 (Dkt. No 61). For the reasons set forth below, the Court recommends that the Federal Defendants' motion be denied as moot, Dr. Larson's motion be granted, Plaintiff's motion be construed as a notice and stipulation for voluntary dismissal, and Dr. Witt's motion be granted. Furthermore, all claims against the Federal Defendants and Defendant Lori Pykkonen should be dismissed without prejudice, and all claims against Drs. Larson and Witt should be dismissed with prejudice.

I. Background

Plaintiff Philip Lyle Martin is proceeding pro se. He is suing Defendants Joshua Larson, M.D.; Jennifer Witt, M.D.; Benjamin Rice; Ashley Peterson; L. Lind; Lori Pykkonen; and B. Bahneman pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Compl. at 1, 8; Dkt. No. 1.) Plaintiff contends that Defendants violated his Eighth Amendment rights, committed medical malpractice, and were negligent in their medical treatment of him. (Id. at 8.) Plaintiff seeks monetary damages and future medical expenses. (Id. at 9.) Plaintiff presently is confined at the Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP-Springfield”). During the events described in the Complaint, however, Plaintiff was an inmate at the Federal Prison Camp in Duluth, Minnesota (“FPC-Duluth”). (Id. at 4.)

According to the allegations in the Complaint, Dr. Larson removed Plaintiff's gallbladder during an outpatient procedure on March 4, 2019, at St. Luke's Hospital in Duluth, Minnesota. (Compl. at 4.) Plaintiff returned to FPC-Duluth later that day and became ill. (Id.) Defendant Lind, a nurse at the facility, thought he was having an adverse reaction to medication. (Id.) Three days after the surgery, Plaintiff was still ill and saw nurse Ashley Peterson during sick call. (Id.) Defendant Peterson told Dr. Rice, who prescribed an injection. (Id.) The following day, Defendant Bahneman administered another injection. (Id.) Plaintiff remained ill until March 12, 2019, and was taken to the emergency room at St. Luke's. (Id. at 4-6.) Dr. Witt performed emergency surgery and found a blockage in Plaintiff's small bowel allegedly caused by sutures placed during the gallbladder surgery. (Id. at 6-7.)

Plaintiff was transferred to MCFP-Springfield. (Id.) There, Plaintiff had a third operation to repair two hernias on July 15, 2020. (Id. at 7.) Plaintiff alleges the hernias were “from the 2nd surgery.” (Id.)

On September 24, 2021, the Federal Defendants filed a Motion to Dismiss and for Summary Judgment (Dkt. No. 28). The Federal Defendants seek summary judgment on Plaintiff's Bivens claims because Plaintiff did not exhaust administrative remedies before filing suit. They seek dismissal for lack of subject-matter jurisdiction of Plaintiff's medical malpractice and negligence claims because they were not presented to the Bureau of Prisons; alternatively, they seek dismissal because Plaintiff did not provide an expert affidavit in support of his negligence and malpractice claims.

On October 11, 2021, Dr. Larson filed a motion for judgment on the pleadings and for dismissal pursuant to Minn. Stat. § 145.682. (Dkt. No. 40.) Dr. Larson seeks dismissal with prejudice of Plaintiff's Bivens and § 1983 claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and dismissal with prejudice of his medical malpractice claim for lack of an expert affidavit. Dr. Witt filed a motion for judgment on the pleadings and for dismissal pursuant to Minn. Stat. § 145.682 on January 6, 2022. (Dkt. No. 61.) Dr. Witt makes the same arguments for dismissal with prejudice as Dr. Larson.

On December 3, 2021, Plaintiff filed a Motion to Dismiss this case without prejudice. (Dkt. No. 54.) The Federal Defendants do not oppose the motion and consent to dismissal of the case without prejudice. (Dkt. No. 56.) Dr. Larson and Dr. Witt do not oppose dismissal, but they ask that dismissal of the claims against them be with prejudice. (Dkt. Nos. 57, 58.)

Plaintiff filed a memorandum in support of his motion for dismissal on February 1, 2022. (Dkt. No. 68.) He explained that he is not an attorney and without counsel, he “fall[s] short.” Plaintiff also filed a supporting exhibit containing several handwritten pages and medical records. (Dkt. No. 69.) Plaintiff's handwritten “statements of fact” in the exhibit are not entirely consistent with his motion for voluntary dismissal. For example, Plaintiff asserted Defendants Rice, Peterson, Lind, Pykkonen, and Bahneman “made no effort to get [him] to the hospital until 3/12/2019.” (Dkt. No. 69 at 7.) He contended that Dr. Larson performed “malpractice surgery.” (Id. at 10.) He asserted that his case has merit and that prison medical staff caused further damage by not taking him back to the hospital sooner. (Id. at 30.)

II. Discussion

A. Plaintiff's Motion to Dismiss

Plaintiff has filed a motion to dismiss his case without prejudice. (Dkt. No. 54.) Although Plaintiff's more recent filings (Dkt. Nos. 68-69) are not entirely consistent with a request for voluntary dismissal, Plaintiff did not withdraw the motion to dismiss.

Federal Rule of Civil Procedure 41(a) governs the voluntary dismissal of “an action” by the plaintiff. Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides for a selfeffectuating voluntary dismissal by notice filed by the plaintiff “before the opposing party serves either an answer or a motion for summary judgment.” No court order or leave is needed for this unilateral voluntary dismissal by notice under Rule 41(a)(1)(A)(i). Williams v. Clarke, 82 F.3d 270, 272 (8th Cir. 1996); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2362 (4th ed.). The notice is effective on the date it is filed. See Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d 861, 864 (8th Cir. 1990) (holding that the district court lacked jurisdiction after the date of the notice of voluntary dismissal). A plaintiff's motion for dismissal may be properly construed as a Rule 41(a)(1)(A)(i) notice of voluntary dismissal. Hines v. Minnesota, No. 18-CV-3250 (ECT/BRT), 2019 WL 4957923, at *1 (D. Minn. Oct. 8, 2019). Dismissal is without prejudice unless the notice provides otherwise. Fed.R.Civ.P. 41(a)(1)(A)(i)

Rule 41(a)(1)(A)(ii) provides that a plaintiff may dismiss an action without a court order by filing “a stipulation of dismissal signed by all parties who have appeared.” The language “signed by all parties who have appeared” is not always interpreted literally. See 9 C. Wright & A. Miller, Federal Practice & Procedure § 2363 (4th ed.) (explaining that “when both parties agree to dismiss in a voluntary and unqualified manner, the district court, in its discretion, may determine that a formal, written stipulation is not necessary to fulfill the Rule's intent”); Boran v. United Migrant Opportunity Servs., Inc., 99 Fed.Appx. 64, 66 (7th Cir. 2004) (finding an effective stipulation when the court received a letter from the plaintiff and letters from the defendants, which all agreed to dismissal). “[L]iteral compliance with the stipulation requirement has not been required where the agreement of all parties is apparent.” Boran, 99 Fed.Appx. at 66-67; see Oswalt v. Scripto, Inc., 616 F.2d 191, 194 (5th Cir. 1980) (finding “the representation to the district court of a settlement . . . tantamount to a stipulation of dismissal under Fed.R.Civ.P. 41(a)(1)(ii)”). Even oral stipulations may suffice. See Pipeliners Loc. Union No. 798. v. Ellerd, 503 F.2d 1193, 1199 (10th Cir. 1974). The “all parties” requirement may be met if no party objects to the dismissal. Med. Assur. Co. v. Weinberger, 973 F.Supp.2d 925, 946 (N.D. Ind. 2013). A stipulated voluntary dismissal is effective when filed and does not require court leave or approval. See 9 C. Wright & A. Miller, Federal Practice & Procedure § 2363 (4th ed.); Kleven v. Walgreen Co., 373 Fed.Appx. 608, 610, 611 (7th Cir. 2010) (“voluntary dismissal under Rule 41 was self-executing, requiring no further action from the district court” where parties filed stipulation for voluntary dismissal).

Finally if a plaintiff cannot achieve voluntary dismissal without a court order under Rule 41(a)(1)(A)(i) or (ii), then Rule 41(a)(2) permits voluntary dismissal by court order, at the plaintiff's request, “on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). “Rule 41(a)(2) is primarily intended to prevent a plaintiff from voluntarily dismissing a lawsuit when such a dismissal would ‘unfairly affect' the defendant.” Beavers v. Bretherick, 227 Fed.Appx. 518, 520 (8th Cir. 2007). When deciding whether to grant voluntary dismissal under Rule 41(a)(2), a district court should consider: “(1) whether the plaintiff has presented a proper explanation for the desire to dismiss, (2) whether the defendant has expended considerable effort and expense in preparing for trial, (3) whether the plaintiff exhibited ...