Opinion
Civil Action 6:22cv022
11-17-2022
CHICO NAKIA CURRY, #01864110 v. DIRECTOR BOBBY LUMPKIN DIRECTOR TDCJ-CID, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Chico Nakia Curry, an inmate confined in the Texas prison system, proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The cause of action was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case.
On October 19, 2022, Plaintiff filed a motion to voluntarily dismiss Defendant Nicholas W. Hanna, as a wrongly named defendant. (Dkt. #62). A plaintiff is entitled to voluntarily dismiss a party before the opposing party serves either an answer or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1). Defendant Hanna, aka Nicholas W. Hannah, filed his answer on June 6, 2022. (Dkt. 17). On October 27, 2022, Defendant Hannah filed a response to Plaintiff's motion to voluntarily dismiss him as a defendant from this suit. (Dkt. #66). Defendant Hannah does not object to Plaintiff's motion to the extent it seeks to voluntarily dismiss him from this lawsuit. The motion to voluntarily dismiss Defendant Nicholas W. Hannah should be granted.
Defendants do object to the substitution of Zachary Hanna for Nicholas W. Hannah. That issue will be addressed in a separate order.
Recommendation
It is recommended that the motion to dismiss (Dkt. #62) be granted and that Defendant Nicholas W. Hannah be dismissed without prejudice. Fed.R.Civ.P. 41(a)(1).
Within fourteen (14) days after receipt of the Magistrate Judge's Report, any party may serve and file written objections to the findings and recommendations contained in the Report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
So Ordered.