Buchanan v. Youngstown Municipal Court, Judge Elizabeth Kobly

Filing 4

Memorandum Opinion and Order: The Court hereby dismisses Plaintiff Tony Rosales' cause of action in its entirety pursuant to Fed.R.Civ.P.41(a) without prejudice. The pending 2 motion to proceed in forma pauperis is denied as moot. Judge Benita Y. Pearson on 5/27/2011. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN BUCHANAN,
Plaintiff,
v.
YOUNGSTOWN MUNICIPAL COURT,
JUDGE ELIZABETH KOBLY,
Defendant.

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CASE NO. 4:11CV00645

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Before the Court is pro se Plaintiff John Buchanan’s Motion to Withdraw his Complaint
in this cause of action against Defendant Youngstown Municipal Court Judge Elizabeth Kobly,
pursuant to 42 U.S.C. § 1983. ECF No. 3. The Court hereby grants Plaintiff John Buchanan’s
Motion to Withdraw his Complaint without prejudice. ECF No. 3.
I. Discussion
According to Fed.R.Civ.P. 41(a)(1), the plaintiff may dismiss an action without consent
of the court either by stipulation of all parties or unilaterally if the defendant has not yet filed an
answer or motion for summary judgment. A plaintiff may file a notice of dismissal under Rule
41(a)(1) only if the defendant has not yet served an answer or motion for summary judgment.
Letherer v. Alger Group, L.L.C., 328 F.3d 262, 265-66 (6th Cir. 2003) (“Pursuant to Rule 41, ‘an
action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal
at any time before service by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties
who have appeared in the action.’”).

(4:11cv106)
Dismissals unilaterally by the plaintiff are governed by the Two Dismissal Rule: the first
voluntary dismissal of a given claim is without prejudice; the second dismissal acts as a final
adjudication on the merits and will preclude a third action based on the same claim. Luciani v.
Schiavone, Case No. 98-4463, 2000 WL 331974, at *7 (6th Cir. Mar. 24, 2000).
In the instant matter, the docket reflects that neither an answer nor a motion for summary
judgment has been filed. The Court’s liberal review of Plaintiff John Buchanan’s Motion to
Withdraw his Complaint as a notice of dismissal under Fed.R.Civ.P.41(a) is granted, and this
case is dismissed without prejudice.1
II. Conclusion
The Court hereby dismisses Plaintiff Tony Rosales’ cause of action in its entirety
pursuant to Fed.R.Civ.P.41(a) without prejudice. The pending motion to proceed in forma
pauperis (ECF No. 2) is denied as moot.

IT IS SO ORDERED.

May 27, 2011
Date

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s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

A liberal standard should be applied to pro se pleadings. Figel v. Overton, 121
Fed.Appx. 642, 645 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). “A
court should make a reasonable attempt to read the pleadings to state a valid claim on which the
plaintiff could prevail, despite the plaintiff’s failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence construction . . . .” Ashiegbu v. Purviance,
74 F.Supp.2d 740, 746 (S.D. Ohio 1998).