REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO DISMISS [23] AND TO DENY AS MOOT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [17]

DAVID R. GRAND, Magistrate Judge.

I. REPORT

A. Background

On June 30, 2015, Plaintiff Zachary Taylor ("Taylor") filed his pro se civil rights complaint against Defendants Randall Haas, George Stephenson, Darrell Steward, and Regina Jenkins-Grant (collectively the "MDOC Defendants"). (Doc. #1). This case has been referred to the undersigned for all pretrial purposes. (Doc. #18).

The MDOC Defendants filed a motion for summary judgment on September 17, 2015. (Doc. #17). In their motion, the MDOC Defendants argue that Taylor's complaint should be dismissed because he did not properly exhaust his administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e(a). (Id.). Taylor failed to timely respond to the MDOC Defendants' motion; therefore, on October 26, 2015, and December 2, 2015, the Court issued an Order to Show Cause and Final Order to Show Cause, respectively. (Docs. #20, 21). In those Orders, Taylor was directed to show cause as to why this Court should not recommend that the MDOC Defendants' motion be granted and/or that his action be dismissed pursuant to Fed. R. Civ. P. 41(b). (Id.).

On December 21, 2015, Taylor filed a Motion to Dismiss, asking the Court to dismiss his case and indicating that he "does not oppose" the MDOC Defendants' assertions that he failed to exhaust his administrative remedies, as required by the PLRA. (Doc. #23). Taylor further indicates that the MDOC Defendants' motion "is uncontested." (Id.). On December 28, 2015, the MDOC Defendants filed a "Consent to Voluntary Dismissal," indicating their agreement with Taylor's request for voluntary dismissal of his lawsuit. (Doc. #24).

B. Analysis

Fed. R. Civ. P. 41(a) governs voluntary dismissals in federal court. Here, where a motion for summary judgment has been filed, and in the absence of a stipulation of dismissal signed by all parties, the plaintiff is required to seek an order of the court to voluntarily dismiss his suit. See Fed. R. Civ. P. 41(a)(2). The court may grant a request for voluntary dismissal "on terms that the court considers proper." Id. Whether to permit a plaintiff to voluntarily dismiss his case is a matter committed to the court's discretion. See Banque de Depots v. Nat'l Bank of Detroit, 491 F.2d 753, 757 (6th Cir. 1974). An "abuse of discretion is found only where the defendant would suffer `plain legal prejudice' as a result of a dismissal without prejudice. . . ." Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, Inc., 583 F.3d 948, 953 (6th Cir. 2009) (internal quotations omitted). Voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2) is without prejudice, unless the court's order states otherwise. See Fed. R. Civ. P. 41(a)(2).

In this case, the MDOC Defendants have specifically indicated that they agree with Taylor's request for dismissal. (Doc. #24). Because the MDOC Defendants have not contended that they will suffer any prejudice as a result of the voluntary dismissal of Taylor's claims, the Court will not presume the existence of prejudice. See Hicks v. Welton, 2010 WL 2507775, at *1 (W.D. Mich. June 17, 2010). For these reasons, Taylor's request to voluntarily dismiss his claims against the MDOC Defendants should be granted.1

II. RECOMMENDATION

For the reasons set forth above, IT IS RECOMMENDED that Taylor's Motion to Dismiss (Doc. #23) be GRANTED and that Taylor's Complaint be DISMISSED WITHOUT PREJUDICE as to all of the named Defendants. IT IS FURTHER RECOMMENDED that the MDOC Defendants' Motion for Summary Judgment (Doc. #17) be DENIED AS MOOT.

REVIEW

Either party to this action may object to and seek review of this Report and Recommendation, but must act within fourteen days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity will not preserve all objections that party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Note these additional requirements at the direction of Judge Cleland:

Each objection must be labeled as "Objection #1," "Objection #2," etc., and must specify precisely the provision of this Report and Recommendation to which it pertains. Not later than fourteen days after service of objections, the non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as "Response to Objection #1," "Response to Objection #2," etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation.