Jones v. Dr. Grey et al

Filing 27

MEMORANDUM AND OPINION, ORDER OF DISMISSAL. ORDERED that Plaintiffs Motion to Dismiss is hereby GRANTED. Plaintiffs lawsuit is accordingly DISMISSED without prejudice. Signed by Magistrate Judge Judith K. Guthrie on 2/24/2013. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

JEROME JONES, #1703077

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VS.

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DR. GREY, ET AL

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CIVIL ACTION NO. 6:11cv430

MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff Jerome Jones, an inmate confined at the Coffield Unit of the Texas prison system,
proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit
pursuant to 42 U.S.C. § 1983. The complaint was assigned to the undersigned by the consent of
the parties pursuant to 28 U.S.C. § 636(c).
The complaint was filed on August 17, 2011, and an amended complaint was filed on
October 12, 2011. The Plaintiff complained that while he was incarcerated at the Bradshaw State
Jail, he started bleeding with his stools on or about June 2, 2011. He claims Defendant LVN Jacobs
did not provide adequate assistance and that Dr. Grey refused to treat him adequately or send him
to the emergency room. He sought declaratory and injunctive relief and damages.
On February 14, 2013, Defendants filed a Motion to Dismiss (docket entry #25). However,
on February 21, 2013, Plaintiff filed a letter Motion to Dismiss (docket entry #26) asking that his
lawsuit be dismissed because he was no longer at the Bradshaw Unit and “Dr. Grey can’t harm me
again”; the medical staff at the Coffield Unit has scheduled a hospital appointment for him for
treatment; and he does not wish the existence of his lawsuit to be a complicating factor in the

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consideration of his eligibility for parole. Motion at 1-2.
Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure allows a plaintiff to voluntarily
dismiss his action before an opposing party serves either an answer or a motion for summary
judgment. Here, Defendants did not file an answer or a motion for summary judgment. They did
file a brief Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief may be granted. The Court takes that motion as signifying assent to a dismissal of the
claims in this case. Neither Plaintiff nor Defendants in their respective motions to dismiss specified
whether their requests were for dismissal with or without prejudice. Therefore, pursuant to Fed. R.
Civ. P. 41(a)(1)(B), dismissal without prejudice is appropriate.
It is accordingly
ORDERED that Plaintiff’s Motion to Dismiss (docket entry #26), construed as a motion to
voluntarily dismiss his lawsuit pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), is hereby GRANTED.
Plaintiff’s lawsuit is accordingly DISMISSED without prejudice pursuant to Fed. R. Civ. P.
41(a)(1)(A)-(B). It is further
ORDERED that Defendants’ Motion to Dismiss (docket entry #25) is hereby DENIED as
MOOT. It is finally
ORDERED that any motion by any party not already addressed is hereby DENIED.
So ORDERED and SIGNED this 24 day of February, 2013.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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