Quick v. Minale et al
DECISION AND ORDER: ORDERED that in accordance with plaintiff's notice (Dkt. No. 35 ) to voluntarily dismiss this action, the Clerk of the Court shall close this case and reflect that the action is voluntarily dismissed without prejudice purs uant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. ORDERED that, because this case shall be closed, all outstanding motions are DENIED as moot. Signed by Judge Brenda K. Sannes on 1/12/17. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN CLARKE, et al.,
Plaintiff, pro se
Great Meadow Correctional Facility
Comstock, NY 12821
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendant
Albany, NY 12224
LOUIS JIM, ESQ.
Ass't Attorney General
BRENDA K. SANNES
United States District Judge
DECISION and ORDER
Plaintiff Desmond Quick commenced this action by filing a pro se complaint for relief
pursuant to 42 U.S.C. § 1983 together with an application to proceed in forma pauperis. Dkt.
No. 1 ("Compl."); Dkt. No. 7 ("IFP Application"). Plaintiff subsequently filed an amended
complaint, which is the operative pleading. Dkt. No. 14 ("Am. Compl."). Plaintiff has now
submitted a request that the action be voluntarily dismissed. Dkt. No. 35. Plaintiff's request
for voluntary dismissal states in its entirety:
I would like the above case dismissed[.] I do not
want to proceed with it anymore.
Id. The Court construes plaintiff's request as seeking voluntary dismissal of this action
pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.").
Defendants have responded to the motion stating "that they do not object to Mr. Quick's
request that this case be dismissed." Dkt. No. 36.
Rule 41(a) provides in relevant part that a plaintiff "may dismiss an action 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). Although
defendants have appeared in this action, they have not answered or moved for summary
judgment. Thus, plaintiff's notice of dismissal entitles to him to voluntarily dismiss this action
without a court order. Id.1
In light of the foregoing, upon the filing of plaintiff's notice requesting to withdraw this
action, the action was dismissed, and an order of the court was not required to implement
that dismissal. The dismissal is without prejudice.
WHEREFORE, it is hereby
ORDERED that in accordance with plaintiff's notice (Dkt. No. 35) to voluntarily dismiss
this action, the Clerk of the Court shall close this case and reflect that the action is voluntarily
dismissed without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil
Defendants appeared by counsel after acknowledging receipt of the summons and complaint under
their correct names. Dkt. Nos. 26-29, 32. Since this action will be dismissed at plaintiff's request, there is no
need to correct defendants' names on the docket report. Moreover, at this stage of the litigation, defendants'
consent to dismissal is not required. See Fed. R. Civ. P. 41(a)(1)(A)(i).
Procedure; and it is further
ORDERED that, because this case shall be closed, all outstanding motions are
DENIED as moot; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
Dated: January 12, 2017
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