*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this opinion should not be published and is not precedent except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.

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
2

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
3

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