United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
August 3, 2016, the court received a motion to voluntarily
dismiss, which was ostensibly filed by pro se plaintiff Scott
Andrew McCaul, to dismiss the action and to stop the
collection of the filing fee prescribed by 28 U.S.C.
§§ 1914 and 1915. Because no answer or motion for
summary judgment had been filed, the action was dismissed
without prejudice by operation of law pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A). Nonetheless, I entered
an order to direct the Clerk's Office to dispose of
motions: grant the motion to voluntarily dismiss, dismiss
pending motions as moot, and strike the case from the active
docket. I noted in the Order that there was no provision in
§§ 1914 or 1915 or Federal Rule of Civil Procedure
41 to invalidate fee collection upon a voluntary dismissal.
before me is Plaintiffs unverified motion for reconsideration
of that Order.
Upon receiving legal advice and help from a PrisonCrat
that's incarcerated with Plaintiff[, ] [t]he PrisonCrat
provided Plaintiff with false legal advice and help on his
legal options dealing with Plaintiffs civil action. The
PrisonCrat informed Plaintiff that the only legal option he
has to stop the court from collecting the filing fee ... is
that Plaintiff must move a motion to dismiss his civil
action[.] Due to the Plaintiff is [sic] not legally adequate
he took the PrisonCrat's advice to be accurate so
Plaintiff allowed the PrisonCrat to file the motion but the
Plaintiff was not given the opportunity to view such motion
Plaintiff notes he did not sign the motion to voluntarily
dismiss this action without prejudice. So hereby the
Plaintiff objects to filing on the motion to voluntarily
dismiss this action and moves to motion ... reconsideration
and move to revoke and stricken the plaintiffs motion to
voluntarily dismiss this action.
motion for reconsideration is DENIED for three reasons.
First, the motion to voluntarily dismiss operated as a matter
of law to dismiss the action. Thus, the dismissal was not
dependent upon an order for which Plaintiff can seek
the dismissal was without prejudice, meaning Plaintiff can
refile the case at the time of his choice subject to the
applicable limitations period. Plaintiff alleged that the
facts underlying the action began in February 2015, and thus,
dismissal without prejudice does not act as a de facto
dismissal with prejudice due to the limitations period.
I am not persuaded by Plaintiffs invocation of Federal Rule
of Civil Procedure Rule 11(a) to void the operation of Rule
41(*). Plaintiff essentially argues that the motion to
voluntarily dismiss could not legally trigger the automatic
dismissal provision of Rule 41(a)(1)(A) because he never
signed the motion to voluntarily dismiss. Rule 11(a) requires
"[e]very pleading, written motion, and other paper ...
be signed by at least one attorney of record in the
attorney's name - or by a party personally if the party
present invocation of Rule 11 is duplicitous. He knowingly
permitted the inmate to file the motion on his behalf, and
now that the motion's adjudication did not go as
Plaintiff expected or the "PrisonCrat" guaranteed,
Plaintiff wants a do-over because he is pro se and did not
sign the motion that he instructed the "PrisonCrat"
to file. Plaintiff agreed with the legal advice from the
fellow inmate, failed to conduct his own due diligence, and
knowingly permitted the inmate to draft the motion on
Plaintiffs behalf. Instead of relying on the free legal
resources available to him at the state prison, which usually
includes free use of a law library and free legal counsel
appointed to the state correctional facility, Plaintiff
knowingly relied upon the advice of a "PrisonCrat."
Beside the common sense doctrine of caveat emptor, Plaintiff
"bears the risk of negligent conduct on the part of his
agent." Maples v. Thomas, 132 S.Ct. 912, 922
recognize that a pro se litigant's lack of legal training
should not be the sole basis for forfeiture of important
rights. Nevertheless, a pro se litigant is not exempt from
complying with relevant rules of procedural and substantive
law or the notion of fair play. A pro se litigant is not
entitled to special consideration to excuse a failure to
follow a straightforward procedural requirement that a lay
person can comprehend as easily as a lawyer. Jourdan v.
Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991); see,
e.g.. Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.
1989); McDonald v. Head Criminal Ct. Supervisor
Officer. 850 F.2d 121, 124 (2d Cir. 1988). Plaintiff
knows of Rule 11 and flouted the signature requirement for
the motion he authorized. As noted earlier, Plaintiff is not
forfeiting an important right, and holding Plaintiff to his
voluntary decision to dismiss the action without prejudice is
an appropriate sanction for now attempting to game Rule 11
and the latitude usually afforded pro se litigants.
the motion for reconsideration is DENIED, and the action
remains dismissed without prejudice. Plaintiff may refile the
complaint in a new and separate action at the time of his
choice subject to the applicable limitations