Goings v. Pittsburg, Kansas, City of et al

Filing 34

MEMORANDUM AND ORDER DISMISSING CASE Without Prejudice. Signed by Chief Judge Kathryn H. Vratil on 5/25/2011. Mailed to pro se party Joseph Goings by regular mail. (mg) Modified on 5/26/2011 (WO) (lak).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH GOINGS,

)
)

Plaintiff,
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v.
)
)
CITY OF PITTSBURG, PITTSBURG POLICE )
DEPARTMENT, CHRISTOPHER MOORE,
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SCOTT SULLIVAN and JEFF WOODS
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 10-1401-KHV

MEMORANDUM AND ORDER
Plaintiff, proceeding pro se, alleges that defendants violated 42 U.S.C. § 1983 and the
Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution during a
traffic stop and DUI arrest which occurred in the City of Pittsburg, Kansas on November 29,
2008. Specifically, plaintiff alleges that (1) defendants Scott Sullivan and Christopher Moore
used unlawful force when arresting plaintiff; (2) defendant Moore violated the Fifth Amendment
by questioning plaintiff before informing him of Miranda rights; (3) defendant Moore violated
the Fourth and Fourteenth Amendments by falsely arresting and imprisoning plaintiff without
probable cause; (4) defendants Sullivan, Moore and Jeff Woods violated the Sixth Amendment
by prosecuting him for driving under the influence based on testimony from an unidentified
eyewitness; and (5) defendants City of Pittsburg and Pittsburg police department are liable for
failing to properly train, supervise and discipline the individual defendants who violated
plaintiff’s rights.

This matter is before the Court on the Dismissal (Doc. #29) which plaintiff filed May 12,
2011 and which the Court construes as a request to dismiss under Rule 41(a)(2), Fed. R. Civ. P.1
Defendants do not oppose plaintiff’s request. See Response To Notice Of Dismissal (Doc. #32),
filed May 23, 2011.2
IT IS THEREFORE ORDERED that the case be and hereby is DISMISSED without
prejudice.
Dated this 25th day of May, 2011 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

1

Plaintiff cannot voluntarily dismiss the case without a court order because he did
not serve the notice of dismissal before defendants answered, as required by Rule 41(a)(1)(i), or
file a stipulation of dismissal signed by all parties as required by Rule 41(a)(1)(ii). Thus the
Court considers plaintiff’s request under Rule 41(a)(2), Fed. R. Civ. P., which states that “an
action may be dismissed at the plaintiff’s request only by court order on terms that the court
considers proper.”
2

Defendants note that if plaintiff later re-files the case, they will seek costs under
Rule 41(d), Fed. R. Civ. P.
2