Opinion
5:23-cv-00079-TES-CHW
08-16-2023
DEANTE GHOLSTON, Plaintiff, v. Commissioner TIMOTHY WARD, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
ORDER
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
Plaintiff Deante Gholston filed a motion to dismiss the above-styled case, wherein he asked to dismiss his complaint “[i]f the defendants will accept that I dismiss my complaint without plaintiff recovering nothing and also defendants recovering nothing.” (Doc. 28). When Plaintiff filed his motion to dismiss, there were two sets of unnamed Defendants for whom personal service was pending. See (Docs. 26, 27). Because those Defendants had not filed an answer, Plaintiff was within his right to voluntarily dismiss his claims against them under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure.
At the time that Plaintiff filed his motion to dismiss, Defendant Ward's pre-answer motion to dismiss (Doc. 15) was pending, and the parties had not filed a stipulation of dismissal as contemplated by Rule 41(a)(1). Following the filing of a responsive pleading and in the absence of a stipulation, voluntary dismissal against Defendant Ward would require a court order under Rule 41(a)(2). The Court therefore ordered Defendant Ward to respond to Plaintiff's motion. (Doc. 30). Defendant Ward has now responded to Plaintiff's motion to dismiss, waived any costs to which he may have been entitled, and asked that the motion be granted. (Doc. 32).
As Defendant has now stipulated to the voluntary dismissal of the case, Plaintiff's motion to dismiss his complaint (Doc. 28) is GRANTED, and this case is DISMISSED without prejudice. Defendant Ward's motion to dismiss (Doc. 15) is hereby TERMINATED, as moot, and Defendant's response (Doc. 32) is administratively terminated as it was erroneously docketed as a motion to dismiss.
SO ORDERED.