Hervey v. Howard et al

Filing 21

MEMORANDUM AND ORDER denying as moot 10 Motion to Dismiss; granting 19 Motion to Dismiss (titled Motion to Withdraw). This case is dismissedwithout prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Signed by Chief District Judge Julie A. Robinson on 9/11/2020. Mailed to pro se party Aaron Hervey by regular mail. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AARON HERVEY,
Plaintiff,
v.

Case No. 19-CV-03256-JAR-GEB

LAURA HOWARD, SECRETARY OF THE
KANSAS DEPARTMENT OF AGING AND
DISABILITY SERVICES, et al.,
Defendants.

MEMORANDUM & ORDER
Pro se Plaintiff Aaron Hervey filed this action on December 11, 2019, seeking relief
under 42 U.S.C. § 1983 for alleged civil rights violations arising from an incident at Larned State
Hospital in Larned, Kansas. On July 21, 2020, Defendant Howard filed a Motion to Dismiss,1 to
which Plaintiff failed to respond. This Court therefore directed Plaintiff to show cause in writing
why Defendant Howard’s motion to dismiss should not be granted as unopposed as described in
D. Kan. Rule 7.4(b), and to file any response to Defendant Howard’s motion, on or before
September 14, 2020.2 Instead of responding to the Order to Show Cause or filing a response as
directed, Plaintiff filed a “Motion to Withdraw.”3 Plaintiff requests that “he be allowed to
withdraw until [he] can properly educate [himself] or find someone who can truly assist [him] in
this endeavor to seek proper Justice,” and states that he wishes to “withdraw without prejudice.”4

1

Doc. 10.

2

Doc. 17.

3

Doc. 19.

4

Id. at 1.

The Court construes Plaintiff’s Motion to Withdraw as a notice of voluntary dismissal
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Rule 41(a)(1)(A)(1) permits voluntary dismissal of an
action by the plaintiff “without a court order” by filing “a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment.” Once the plaintiff files a Rule
41(a)(1)(A) voluntary dismissal, “the district court loses jurisdiction over the dismissed claims
and may not address the merits of such claims or issue further orders pertaining to them.”5 The
dismissal is without prejudice “[u]nless the notice . . . states otherwise.”6
Here, no defendant has filed an answer or a motion for summary judgment; Defendant
Howard has filed only a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Plaintiff’s notice of voluntary dismissal therefore took effect without a court order upon filing.
This Court, however, issues this Order to clarify that it construes Plaintiff’s Motion to Withdraw
as a notice of voluntary dismissal and to rule that Defendant Howard’s Motion to Dismiss is
accordingly moot.
IT IS THEREFORE ORDERED BY THE COURT that this case is dismissed
without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
IT IS FURTHER ORDERED that Defendant Howard’s Motion to Dismiss (Doc. 10) is
denied as moot.
IT IS SO ORDERED.
Dated: September 11, 2020

5
Netwig v. Ga. Pac. Corp., 375 F.3d 1009, 1011 (10th Cir. 2004) (quoting Janssen v. Harris, 321 F.3d 998,
1000 (10th Cir. 2003)); see also De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (“A stipulation of
dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is self-executing and immediately strips the district court of
jurisdiction over the merits.”).
6

Fed. R. Civ. P. 41(a)(1)(B).

2

S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

3