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Harry Michael Wright v. Morris Young

December 5, 2011

HARRY MICHAEL WRIGHT, PLAINTIFF,
v.
MORRIS YOUNG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary R. Jones United States Magistrate Judge

ORDER

Pending before the Court is Plaintiff's Motion To Dismiss Defendant Kevin Peterson. (Doc. 19.) Plaintiff requests that the Court dismiss Defendant Kevin Peterson from this action. In support of his request, Plaintiff advises that the process server determined Defendant Kevin Peterson is no longer employed by the Gadsden County Sheriff's Office. Plaintiff further informs the Court that the process server has been unable to locate Defendant Kevin Peterson.

Under Fed. R. Civ. P. 41(a)(1)(A)(i), a plaintiff may voluntarily dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. The effect of such a voluntary dismissal by a plaintiff is that the dismissal is without prejudice, unless the plaintiff has previously dismissed any federal or state court action based on or including the same claim. FED. R. CIV. P. 41(a)(1)(B).

In this instance, Defendant Kevin Peterson was never served and therefore has not filed an answer or a motion for summary judgment. In addition, there is no indication Plaintiff previously dismissed a federal or state court action based upon or including the same claim. Indeed, Plaintiff states in his First Amended Complaint he has not filed any actions in federal or state court dealing with the same or similar facts or issues involved in this action. (Doc. 9 at 4.)

Accordingly, Plaintiff's request to dismiss the claims against Defendant Kevin Peterson without prejudice pursuant to Rule 41(a)(1)(A)(I) is due to be granted.

Upon due consideration, it is ORDERED that:

(1) Plaintiff's Motion To Dismiss Defendant Kevin Peterson (Doc. 19) is GRANTED.

(2) Plaintiff's claims against Defendant Kevin Peterson are hereby DISMISSED WITHOUT PREJUDICE.

(3) The Clerk is instructed to make the appropriate notation on the docket.

Gary R. Jones

20111205

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