Opinion
CASE NO. 3:15-CV-05756-RBL-JRC
03-14-2016
SCOTT EVATT, Plaintiff, v. MARY MARTIN et al., Defendants.
REPORT AND RECOMMENDATION NOTED FOR: APRIL 8, 2016
Plaintiff Scott Evatt, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. Before the Court is plaintiff's voluntary motion to dismiss his complaint Dkt. 18. Because no defendants have been served in this action, the undersigned recommends that the motion be granted and that plaintiff's complaint be dismissed without prejudice.
BACKGROUND
On November 24, 2015, plaintiff filed a prisoner civil rights complaint. Dkt. 8. On November 25, 2015, the Court ordered plaintiff to show cause why his case should not be dismissed for failure to state a claim. Alternatively, plaintiff was directed to file an amended complaint on or before December 24, 2015. Dkt. 9. On December 9, 2015, plaintiff filed an amended complaint. Dkt. 10. The Court found the amended complaint to be deficient and granted plaintiff another opportunity to show cause or amend his complaint. Dkt. 12. On February 8, 2016, plaintiff filed his second amended complaint, which the Court also found to be deficient. Dkt. 15. However, the Court granted plaintiff one more opportunity to show cause or amend his complaint. Dkt. 17.
On February 29, 2016, plaintiff filed a motion to voluntarily dismiss his complaint stating that he has "no choice, but to drop my 1983 civil complaint." Dkt. 18.
DISCUSSION
Rule 41 sets forth the circumstances under which an action may be dismissed. Under Rule 41(a)(1), an action may be dismissed by the plaintiff without order of court:
(i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.
None of the defendants have been served in this matter. The Court should grant plaintiff's motion (Dkt. 18) and dismiss this action without prejudice.
CONCLUSION
The undersigned recommends that plaintiff's motion to voluntarily dismiss his complaint (Dkt. 18) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on April 8, 2016, as noted in the caption.
Dated this 14th day of March, 2016.
/s/_________
J. Richard Creatura
United States Magistrate Judge