Lumbard v. Kuhne et al

Filing 9

ORDER dismissing as moot 4 Application for Authorization; granting 5 Motion to Dismiss; dismissing as moot 8 Motion to Dismiss. Signed by Chief Judge Robert J. Conrad, Jr on 7/28/2011. (Pro se litigant served by US Mail.)(pdf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv125-RJC

CLYDE RONALD LUMBARD,

)
)
Plaintiff,
)
)
v.
)
)
ALBERT K. KUHNE, M.D., Marion Cor)
rectional Institution1
)
(FNU) MEDFORD, Head Nurse, MCI;
)
PAULA SMITH, Head Physician, North Caro- )
lina Department of Corrections; and
)
NORTH CAROLINA DEPARTMENT OF
)
CORRECTIONS,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court upon Plaintiff’s civil rights Complaint brought pursuant
to 42 U.S.C. § 1983 (Doc. No. 1); his Motion for Injunctive Relief (Doc. No. 4); and his Motions
for Voluntary Dismissal (Doc. Nos. 5 and 8).
On May 23, 2011, Plaintiff filed a civil rights Complaint seeking to challenge his medical
care at MCI. (Doc. No. 1). Such Complaint concedes that Plaintiff did not present his claims to
MCI through its administrative grievance procedures. (Id. at 3-8). Having comprehended the
consequences of his failure to exhaust his claims, on July 1 and July 11, 2011, Plaintiff filed Motions
for Voluntary Dismissal seeking a dismissal of his Complaint without prejudice to his right to re-file
his case after fully exhausting his administrative remedies. (Doc Nos. 5 and 8).
As Rule 41 of the Federal Rules of Civil Procedure provides, subject to certain limitations
not applicable here, a plaintiff “may dismiss an action without a court order by filing a notice of
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Marion Correctional Institution will hereinafter be referred to as “M CI.”

dismissal before the opposing party serves either an answer or a motion for summary judgment
. . . .” Fed. R. Civ. P 41(a)(1)(A)(i). Because Defendants have not yet been directed by the Court
to respond to Plaintiff’s allegations, Plaintiff is entitled to dismiss his case as a matter of right. See
Finley Lines Joint Protective Bd. et al. v. Norfolk Southern Corp., et al., 109 F.3d 993, 995 (4th Cir.
1997). Accordingly, the Court will grant Plaintiff’s first Motion for Voluntary Dismissal and will
dismiss the second Motion along with his Motion for Injunctive Relief as moot.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion for Injunctive Relief (Doc. No. 4) is DISMISSED as moot;

2.

Plaintiff’s first Motion for Voluntary Dismissal (Doc. No. 5) is GRANTED;

3.

Plaintiff’s second Motion for Voluntary Dismissal (Doc. No. 8) is DISMISSED as
moot;

4.

Plaintiff’s Complaint is DISMISSED without prejudice.
Signed: July 28, 2011

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