McClain v. Secretary, DOC et al
Filing
74
OPINION AND ORDER re: 71 Notice of voluntary dismissal construed as a motion pursuant to Fed.R.Civ.P. 41(a)(2) is granted and the Clerk shall enter judgment dismissing this case without prejudice, terminate any pending motions and deadlines, and close this file. Signed by Judge Sheri Polster Chappell on 8/26/2019. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CODY MCCLAIN,
Plaintiff,
v.
Case No.: 2:15-cv-594-FtM-38NPM
FNU KUBIK,
Defendant.
/
OPINION AND ORDER1
Before the Court is pro se Plaintiff’s letter advising the Court that he wishes “to
drop my Civil Rights Complaint against FNU Kubik due to lack of legal knowledge.” (Doc.
71 at 1).
Plaintiff, who is incarcerated and has pending an Amended Civil Rights
Complaint alleging deliberate indifference to dental care (see Doc. 41), apparently seeks
to voluntarily dismiss this action.
Prior to an answer or motion for summary judgment by the opposing party or upon
stipulation, a party may voluntarily dismiss an action without a court order. Fed. R. Civ.
P. 41(a)(1)(A). Otherwise, an action may be dismissed upon the plaintiff’s request by
court order. Fed. R. Civ. P. 41(a)(2). Because Defendant Kubik has filed an Answer
(Doc. 66), the Court construes the letter as a motion brought pursuant to Fed. R. Civ. P.
1
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41(a)(2). On August 9, 2019, Defendant Kubik filed a Notice Regarding Motion for
Summary Judgment Deadline and Plaintiff’s Voluntary Dismissal. (Doc. 72). Defendant
Kubik advises the Court that due to Plaintiff’s notice of voluntary dismissal he will not be
filing a motion for summary judgment by the August 15, 2019 deadline. (Doc. 72 at 2, ¶
8). Consequently, it appears that Defendant Kubik has no opposition to the Court granting
Plaintiff’s motion to voluntarily dismiss this action.
Accordingly, it is now
ORDERED:
Plaintiff’s letter (Doc.71) construed as a motion pursuant to Fed. R. Civ. P. 41(a)(2)
is GRANTED and the Clerk shall enter judgment dismissing this case without prejudice,
terminate any pending motions and deadlines, and close this case.
DONE and ORDERED in Fort Myers, Florida this 26th day of August, 2019.
SA: FTMP-1
Copies: All Parties of Record
2
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