Opinion
9:19-CV-0552 (GTS/ML)
10-07-2019
ANTHONY HORTON, Plaintiff, v. ADAIR, Defendant.
APPEARANCES: ANTHONY HORTON Plaintiff, Pro Se 06-A-5568 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021
APPEARANCES: ANTHONY HORTON
Plaintiff, Pro Se
06-A-5568
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021 GLENN T. SUDDABY Chief United States District Judge
DECISION and ORDER
Plaintiff Anthony Horton commenced this action by filing a pro se complaint for relief pursuant to 42 U.S.C. § 1983, and thereafter an application to proceed in forma pauperis, a motion for appointment of counsel, two letter motions for preliminary injunctive relief, and a third motion for preliminary injunctive relief. Dkt. No. 1 ("Compl."); Dkt. No. 3 ("First Preliminary Injunction Motion"); Dkt. No. 5 ("IFP Application"); Dkt. No. 8 ("Second Preliminary Injunction Motion"); Dkt. No. 9 ("Motion for Counsel"); Dkt. No. 16 ("Third Preliminary Injunction Motion"). By Decision and Order filed on September 24, 2019, plaintiff's IFP Application was granted and, after screening the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), some of plaintiff's claims and some of the named defendants were dismissed, and service was directed for the claim against defendant Adair that survived sua sponte review. Dkt. No. 17 ("September 2019 Order"). Following the September 2019 Order, a summons was issued for defendant Adair. Dkt. No. 18.
The Court also denied plaintiff's motions for injunctive relief and motion for counsel. See September 2019 Order at 23.
Presently before the Court is a letter from plaintiff dated October 1, 2019, in which he states as follows:
Please cease and desist with all action wherein regards to plaintiff's suit. More importantly do not forward copies of plaintiff's complaint to defendant, plaintiff wishes to withdraw his complaint; with the full understanding that he the plaintiff still or [sic] owes to the Court $350.00 to cover cost of filing fee.Dkt. No. 19 at 1. Plaintiff has also attached to his letter a document that is captioned "Motion For Leave To File An Amended Complaint," wherein plaintiff asks the Court to "cease with any proceedings . . . regard[ing] . . . plaintiff's civil suit" and discontinue efforts to serve the defendant, and states that if plaintiff "should . . . suffer further harm beyond that of July 21, 2019[, he] will make the matter a state issue of claim." Id. at 3-5.
Plaintiff's letter separately asks whether defendant Adair has been served. Dkt. No. 19 at 1. --------
The Court construes plaintiff's letter and attached motion as an application seeking voluntary dismissal of this action pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Rule 41(a) provides in relevant part that a "plaintiff may 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." Fed. R. Civ. P. 41(a)(1)(A)(i). Since defendant Adair has not answered or moved for summary judgment, plaintiff is entitled to voluntary dismissal of this action without prejudice, without further order of the court, upon the filing of such a notice.
In light of the foregoing, upon the filing of plaintiff's notice requesting to cancel this action, this action was dismissed, without prejudice, and an order of the court was not required in order to implement that dismissal.
WHEREFORE, it is hereby
ORDERED that in accordance with plaintiff's notice (Dkt. No. 19) to voluntarily dismiss this action, the Clerk of the Court shall close this case and reflect that the action is voluntarily dismissed without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure; and it is further
ORDERED that the Clerk serve copies of this Decision and Order on the plaintiff and the Office of the New York State Attorney General.
IT IS SO ORDERED.
Dated: October 7, 2019
Syracuse, New York
/s/_________
Hon. Glenn T. Suddaby
Chief U.S. District Judge