Eron, Dustin Phillip v. Reynolds, Bret

Filing 31

ORDER that defendant Bret Reynolds may have until September 23, 2011, in which to advise plaintiff and the court whether he agrees to dismissal of this action without prejudice. If defendant Reynolds does not agree to such a dismissal, plaintiff may have until September 27, 2011 in which to either (1) withdraw his motion to dismiss or (2) advise the court that he has no objection to a dismissal of this case with prejudice. If, by September 27, 2011, plaintiff fails to request withdrawal of his m otion to dismiss this case, this case will be dismissed with prejudice. Briefing on defendants 22 motion for summary judgment is stayed pending resolution of plaintiffs 30 motion to dismiss with prejudice. Signed by Magistrate Judge Stephen L. Crocker on 9/14/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DUSTIN PHILLIP ERON,
Plaintiff,

ORDER

v.
10-cv-698-slc
DR. BRET REYNOLDS,
Defendant.

This prisoner civil rights case was transferred from the United States District Court for
the Eastern District of Wisconsin on November 10, 2010. Defendant Bret Reynolds has
answered the complaint and a preliminary pretrial conference order was issued on January 18,
2011. On August 22, 2011, defendant Reynolds filed a motion for summary judgment.
Plaintiff Dustin Eron’s brief in opposition to defendant’s motion for summary judgment was due
on September 12, 2011. Now plaintiff has filed a motion to dismiss this case without prejudice
so that he may have the option of refiling this case once he has obtains an attorney.
When a motion for dismissal is filed after a defendant has filed an answer, Rule 41(a)(2)
provides that the action may be dismissed by the plaintiff "only upon order of the court and
upon such terms and conditions as the court deems proper." Because defendant Reynolds has
been required to defend this action, I will grant plaintiff's motion for voluntary dismissal of this
defendant only on the condition that the dismissal is with prejudice, which means that plaintiff
will be barred from bringing the excessive force claim in his current case in any future action,
unless defendant Reynolds agrees to a dismissal without prejudice. If defendant Reynolds does
not agree to a dismissal without prejudice, then plaintiff will have an opportunity to withdraw
his motion.

ORDER
IT IS ORDERED that
1. Defendant Bret Reynolds may have until September 23, 2011, in which to advise
plaintiff and the court whether he agrees to dismissal of this action without prejudice. If
defendant Reynolds does not agree to such a dismissal, plaintiff may have until September 27,
2011 in which to either (1) withdraw his motion to dismiss or (2) advise the court that he has
no objection to a dismissal of this case with prejudice. If, by September 27, 2011, plaintiff fails
to request withdrawal of his motion to dismiss this case, this case will be dismissed with
prejudice.
2. Briefing on defendant’s motion for summary judgment is STAYED pending
resolution of plaintiff’s motion to dismiss with prejudice.

Entered this 14th day of September, 2011.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge