Kelly v. Rich
ORDER Granting 10 MOTION to Dismiss, Rejecting 7 Report and Recommendation as Moot, and Dismissing Case Without Prejudice. Signed by District Judge Thomas L. Ludington. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL A. KELLY,
Case No. 16-cv-12624
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris
ELIZABETH MARY RICH,
ORDER GRANTING MOTION TO DISMISS, REJECTING REPORT AND
RECOMMENDATION AS MOOT, AND DISMISSING CASE WITHOUT PREJUDICE
On August 14, 2016 Plaintiff Michael A. Kelly initiated this action against Defendant
Elizabeth Mary Rich, alleging that Defendant criminally conspired to deprive him of his
constitutional rights by filing a false police report against him in violation of 18 U.S.C. § 241.
See Compl., ECF No. 1. Kelly’s application to proceed without prepayments of fees or costs was
granted, and the matter was referred to Magistrate Judge Patricia T. Morris for pretrial purposes
on July 25, 2016. See ECF Nos. 5, 6. On August 3, 2016 the magistrate issued a report and
recommendation, recommending sua sponte dismissing Kelly’s case for lack of subject matter
jurisdiction pursuant to the IFP screening statute, 28 U.S.C. § 1915(e)(2)(B). See Rep. and Rec.,
ECF No. 25. The report provided Kelly with fourteen days to file any objections. Id.
On September 9, 2016 Plaintiff Kelly filed a motion to dismiss his case without
prejudice. See ECF No. 10. Federal Rule of Civil Procedure 41 provides that a plaintiff may
voluntarily dismiss his case without a court order by filing “a notice of dismissal before the
opposing party serves either an answer or a motion for summary judgment[.]” Fed. R. Civ. P.
41(a)(1)(A)(i). An action may also be dismissed at the plaintiff’s request “by court order, on
terms that the court considers proper.” In the present action, Defendant has not yet appeared or
filed an answer. Plaintiff Kelly’s motion to dismiss will therefore be granted, and the report and
recommendation rejected as moot.
Accordingly, it is ORDERED that Plaintiff Michael Kelly’s motion to dismiss, ECF No.
10, is GRANTED.
It is further ORDERED that the magistrate’s report and recommendation, ECF No. 7, is
REJECTED as moot.
It is further ORDERED that this matter is DISMISSED without prejudice. This is a
final order and closes the case.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 21, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 21, 2016.
s/Michael A. Sian
MICHAEL A. SIAN
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?