BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Carlos Manuel Flores is a state prisoner proceeding pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
Currently before the Court is Plaintiff's motion to dismiss the complaint against Defendant Cruz, filed on December 18, 2017. (ECF No. 48.)
"[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment."
Here, Defendants filed a motion for summary judgment earlier in this case, and proceedings related to Defendant Cruz's motion for summary judgment remain pending. Specifically, Defendant Cruz filed a motion for an evidentiary hearing regarding his motion for summary judgment for the failure to exhaust administrative remedies, which remains pending. (ECF No. 46.) Therefore, Plaintiff's request for dismissal of this action must be made pursuant to Rule 41(a)(2), which is by court order, on terms that the court considers proper.
"A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the dismissal."
Unless otherwise specified, dismissal pursuant to Rule 41(a)(2) is without prejudice. It is, however, within a court's discretion to dismiss with prejudice, and dismissal with prejudice is appropriate if it would be inequitable or prejudicial to the defendant to allow the plaintiff to re-file the action. Factors to be considered include: "(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 actions, and (3) insufficient explanation of the need to take a dismissal."
Considering the facts discussed above, dismissal without prejudice is appropriate here. This case is not at a stage at which the parties have expended efforts and expenses preparing for trial. The parties have litigated the issue of exhaustion of administrative remedies at some length, and there is a pending motion on that matter. However, even if that motion were to be granted in Defendant Cruz's favor, the claim against him would nevertheless be dismissed without prejudice. Thus, Defendant Cruz would not suffer a legal prejudice in this matter by a dismissal of Plaintiff's claim, without prejudice.
For these reasons explained, IT IS HEREBY RECOMMENDED that Plaintiff's motion to dismiss his claim against Defendant Cruz be granted, without prejudice (ECF No 48.)
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within