Pankey v. Annucci et al
DECISION AND ORDER DISMISSING CASE: Plaintiff's motion to withdraw the complaint (Dkt. No. 12 ) is GRANTED. The Clerk of the Court is directed to close this case and reflect that the action is voluntarily dismissed without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Signed by Chief Judge Glenn T. Suddaby on 1/6/2021. (Copy served upon plaintiff via regular mail) (sal )
Case 9:20-cv-00577-GTS-DJS Document 14 Filed 01/06/21 Page 1 of 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
R. BAMBOSA, et al.,
Plaintiff, pro se
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, NY 14411
GLENN T. SUDDABY
Chief United States District Judge
DECISION and ORDER
Pro se plaintiff Jake Pankey ("Plaintiff") commenced this action on May 27, 2020, by
filing a Complaint for relief pursuant to 42 U.S.C. § 1983 and an application to proceed in
forma pauperis. Dkt. Nos. 1 ("Compl."); 2 ("IFP Application").
By Decision and Order filed July 30, 2020 (the "July Order"), the Court granted
Plaintiff's IFP application and reviewed the sufficiency of the Complaint in accordance with 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 6. On the basis of that review, the Court
found that Plaintiff's Fourteenth Amendment procedural due process claim against defendant
Bambosa survived review. See id. The Court held service of the Complaint and a response
Case 9:20-cv-00577-GTS-DJS Document 14 Filed 01/06/21 Page 2 of 3
from Bambosa in abeyance pending a Peralta Waiver from Plaintiff. See id.
On September 24, 2020, in lieu of a Peralta Waiver, Plaintiff filed an Amended
Complaint. Dkt. No. 9. In a Decision and Order filed on October 30, 2020 (the "October
Order"), the Court reviewed the sufficiency of the Amended Complaint in accordance with 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 10. T he Court found that the Fourteenth
Amendment claim against Bambosa survived review and afforded Plaintiff a second
opportunity to submit a Peralta Waiver. See id.
On November 23, 2020, in lieu of a Peralta Waiver, Plaintiff filed a motion to withdraw
the Complaint. Dkt. Nos. 12 and 13 (submission in support).
Rule 41(a) of the Federal Rules of Civil Procedure 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). Rule 41(a) further provides that unless the notice provides otherwise, "the
dismissal is without prejudice." Fed. R. Civ. P. 41(a)(1)(B).
Since defendant has not been served, and has not answered or moved for summary
judgment, Plaintiff is entitled to voluntary dismissal of the action, without further order of the
court, upon the filing of such a notice. Fed. R. Civ. P. 41(a)(1)(A)(i). And, by rule, "[u]nless
the notice . . . states otherwise, the dismissal is without prejudice. . . ." Fed. R. Civ. P.
In light of the foregoing, upon the filing of Plaintiff's motion to withdraw, this action is
dismissed, without prejudice.
WHEREFORE, it is hereby
Case 9:20-cv-00577-GTS-DJS Document 14 Filed 01/06/21 Page 3 of 3
ORDERED that Plaintiff's motion (Dkt. No. 12) is GRANTED; and it is further
ORDERED that the Clerk of the Court close this case and reflect that the action is
voluntarily dismissed without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil
Procedure; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff.
Dated: January 6, 2021
Syracuse, New York
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