Opinion
2:19-cv-01738 KJM DB P
07-28-2021
WESLEY W. KESSLER, Plaintiff, v. ALEXANDER IEROKORMOS, et al., Defendants.
ORDER
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. On July 13, 2021, defendant Ierokormos filed a stipulation of dismissal signed by both the plaintiff and defendant counsel. (ECF No. 41.) The stipulated dismissal states that plaintiff voluntarily dismisses, with prejudice, defendant Alexander Ierokormos pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
Under Rule 41(a)(1) of the Federal Rules of Civil Procedure, a plaintiff may voluntarily dismiss an action without a court order if they file notice of the dismissal prior to an opposing party serving an answer or motion for summary judgement. Unless the notice provided by the plaintiff states otherwise or plaintiff has previously dismissed a state or federal action based on this claim, such a dismissal would be without prejudice. Fed.R.Civ.P. 41(a)(1)(B).
In the present case, defendant Ierokormos has not filed an answer or motion for summary judgement. Thus, plaintiff may voluntarily dismiss this defendant without a court order. As such, the party's stipulation provides sufficient notice for dismissal under Rule 41(a)(1).
Accordingly, given the party's stipulation filed July 13, 2021, plaintiff has dismissed with prejudice his claims in this action as to defendant Alexander Ierokormos only.