Brown v. Green et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry) re 13 MOTION to Dismiss filed by Raymond Brown. Signed by Honorable Malachy E Mannion on 8/28/17. (bs)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA RAYMOND BROWN, Plaintiff v. : : : CONNIE GREEN, et al., Defendants CIVIL ACTION NO. 3:17-0323 (JUDGE MANNION) : : MEMORANDUM I. Background 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 smoke. Id. On August 14, 2017, Plaintiff filed a “Notice of Dismissal Request and Unopposed”, in which he seeks to withdraw the above captioned action. (Doc. 13). Plaintiff’s request will be construed as a motion for voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1), and will be granted. II. Discussion Fed.R.Civ.P. 41(a)(1) states in relevant part: (a) Voluntary Dismissal (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared in the action. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claims, a notice of dismissal operates as an adjudication on the merits. No answer or other responsive pleading has been filed in the above captioned action. Thus, Plaintiff is entitled to dismissal under Fed.R.Civ.P. 41(a)(1),(A). However, because Plaintiff has previously dismissed a prior action based on the same claims raised herein, see Brown v. Green, et al, Civil No. 3:16-cv-1031 (M.D. Pa. Aug 28, 2017) the dismissal of the above captioned action operates as an adjudication on the merits and the dismissal will be with prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(B). 2 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\2017 MEMORANDA\17-0323-01.wpd 3

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