Brown v. Doe et al
MEMORANDUM (Order to follow as separate docket entry) re 59 57 .Signed by Honorable Malachy E Mannion on 8/28/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CONNIE GREEN, et al.,
CIVIL ACTION NO. 3:16-1031
Plaintiff, an inmate confined in the State Correctional Institution,
Huntingdon (“SCI-Huntingdon”), Pennsylvania, filed this civil rights action
pursuant to 42 U.S.C. §1983. (Doc. 1). The named Defendants are the following
correctional officers at SCI-Huntingdon: Connie Green; Superintendent Tice,
Manager Ralston and Dorina Varner. Id. Plaintiff alleges that Defendants are
deliberately indifferent to his health, by continually exposing him to tobacco
On January 23, 2017, Defendants filed a motion for summary judgment
on the issue of exhaustion. (Doc. 47). On February 7, 2017, this Court issued an
Order, affording Plaintiff the opportunity to file an opposition brief by April 7,
2017. (Doc. 55). Plaintiff failed to file a brief in opposition, and instead, filed a
“Motion to Withdraw Civil Action 16-1031.” (Doc. 57). On July 24, 2017, Plaintiff
filed another “Motion to Close Civil Action 16-1031 with No Costs to Either Party.”
(Doc. 59). On August 7, 2017, Defendants filed an unopposed motion for
dismissal of the above captioned action, provided the dismissal is pursuant to
Fed.R.Civ.P. 41(a)(2). (See Doc. 60).
For the reasons set forth below, the Court will grant the Plaintiff’s
motions to dismiss the above captioned action. However, such dismissal will be
pursuant to Fed.R.Civ.P. 41(a)(2).
The pertinent portions of Fed.R.Civ.P. 41(a) are as follows:
(1) By Plaintiff; by Stipulation. Subject to the provisions of
Rule 23(e), of Rule 66, and any statute of the United States, 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
(2) By Order of Court. Except as provided in paragraph (1) of
this subdivision of this rule, an action shall not be dismissed,
at the plaintiff’s instance save upon order of the court and
upon such terms and conditions as the court deems proper....
Unless otherwise specified in the order, a dismissal under this
paragraph is without prejudice.
Fed.R.Civ.P. 41(a)(1),(2). Procedurally, Fed.R.Civ.P. 41(a)(1) is not available to
Plaintiff because there has been both an answer (Doc. 37) and summary
judgment motion (Doc. 47) filed. Consequently, his request for voluntary
dismissal must be pursuant to Fed.R.Civ.P. 41(a)(2) and requires an order of
The Court will grant Plaintiff’s motions and the case will be dismissed
without prejudice. A separate Order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: August 28, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1031-01.wpd
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