STEARNSMILLER v. STATE OF FLORIDA

Filing 15

VACATED (See Order 35 )* REPORT AND RECOMMENDATION re 10 MOTION for Leave to Proceed in forma pauperis, 11 MOTION to Stay, 12 MOTION to Dismiss Action For Good Cause, 13 Notice To Defendants..., 14 MOTION for Ord er to Show Cause - It is recommended: 1. That Plaintiff's "Alternative Plaintiff's [sic] Motion to Dismiss Action for Good Cause," construed as a notice of voluntary dismissal, be Granted and this case be Dismissed without pr ejudice. 2. That all pending motions be Denied as moot. R&R flag set. Internal deadline for referral to district judge if objections are not filed earlier: 9/9/2009. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on August 12, 2009. (cbj) - *Modified on 11/16/2009 (to reflect court's ruling) (cbj).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION RICHARD L. STEARNSMILLER, Plaintiff, vs. STATE OF FLORIDA, et al., Defendants. _____________________________/ REPORT AND RECOMMENDATION This matter is before the court on Plaintiff's "Alternative Plaintiff's [sic] Motion to Dismiss Action for Good Cause," which shall be construed as a notice of voluntary dismissal (Doc. 12). Also pending are Plaintiff's motion to proceed in forma pauperis (Doc. 10), motion to stay (Doc. 11), "Notice to Defendants of NDLR for Waiver of Service of Process" (Doc. 13), and "Motion for Order to Show Cause to Defendants Why Sanctions Should not be Ordered by Court" (Doc. 14). Rule 41(a)(1)(A)(i) provides that an action may be dismissed without an order of the court by filing a notice of dismissal at any time before the adverse party serves an answer or files a motion for summary judgment. Because Defendants have not yet been served in the instant case, it is clear that Plaintiff is automatically entitled to a voluntary dismissal at this time. Accordingly, it is respectfully RECOMMENDED: 1. That Plaintiff's "Alternative Plaintiff's [sic] Motion to Dismiss Action for Good Cause," construed as a notice of voluntary dismissal, (Doc. 12) be GRANTED and this case be DISMISSED without prejudice. 2. That all pending motions be DENIED as moot. Case No.: 5:09cv215/RS/EMT

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At Pensacola, Florida, this 12th day of August 2009.

/s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No.: 5:09cv215/RS/EMT