Walker v. Parker et al

Filing 12

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to dismiss this matter is granted and this matter is dismissed without prejudice. ***Terminating Case. Signed by U.S. Senior District Judge Sam A. Crow on 11/20/17. Mailed to pro se party Earnest Eugene Walker, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EARNEST EUGENE WALKER, JR.,
Petitioner,
v.

CASE NO. 17-3166-SAC

PAMELA C. PARKER, et al.,
Respondents.

MEMORANDUM AND ORDER
On September 22, 2017, the Court entered an Order to Show Cause
directing petitioner to show why this matter should not be dismissed.
Petitioner has filed a motion to voluntarily dismiss this matter (Doc.
#11). The Court liberally construes this as a motion filed under Rule
41(a)(2) of the Federal Rules of Civil Procedure. Under Rule 41(a)(2),
a district court may dismiss an action on the plaintiff’s request on
such terms as the court considers proper. Unless the order of dismissal
states otherwise, the dismissal under Rule 41(a)(2) is a dismissal
without prejudice.
The rule is intended “to prevent voluntary dismissals which
unfairly affect the other side, and to permit the imposition of
curative conditions.” Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir.
2005)(quoting Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354,
357 (10th Cir. 1996)). The courts normally allow a dismissal without
prejudice “unless the defendant will suffer some plain legal
prejudice.” Gonzales v. City of Topeka, 206 F.R.D. 280, 282 (D. Kan.
2001)(quoting Wimber By and Through Wimber v. Department of Social
and Rehabilitation Services, 156 F.R.D. 259, 261 (D.Kan. 1994)).

The Court has examined the record and grants the motion to dismiss
this matter without prejudice. There has been no service of process,
and thus defendants have not expended time or resources in this matter;
likewise, petitioner has not delayed this matter or shown a lack of
diligence.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
dismiss this matter is granted, and this matter is dismissed without
prejudice.
IT IS SO ORDERED.
DATED:

This 20th day of November, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge