Opinion
No. 3:02-CV-0558-H.
April 19, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court immplementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
On March 19, 2002, plaintiff, a prisoner currently incarcerated in the Daihart Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID), filed the instant civil action under 42 U.S.C. § 1983. He names as defendants the Department of Criminal Justice, a Major Tucker, and the Texas Department of Public Safety. On March 26, 2002, plaintiff filed an untitled document asking to "cancel the 1983."
The Court reasonably construes the untitled document filed on March 26, 2002, as a notice of dismissal filed under Fed.R.Civ.P. 41(a). That Rule provides that "an action may be dismissed by the plaintiff . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs." Respondent has not yet filed an answer or a summary judgment motion. Voluntary dismissal under Rule 41(a) is, therefore, proper.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the Court construe the untitled document filed by plaintiff on March 26, 2002, as a notice of dismissal filed under Fed.R.Civ.P. 41(a) and DISMISS the instant § 1983 action without prejudice.