Opinion
Case No. C02-5615FDB
January 16, 2003
REPORT AND RECOMMENDATION
This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636 (b)(1)(B). The plaintiff has filed a Motion to Withdraw the Complaint. (Dkt. #17). The motion does not appear to have been served on opposing counsel. Defendants have appeared but have not filed an answer or otherwise responded to the complaint. The undersigned recommends that the Court DISMISS plaintiffs action WITHOUT PREJUDICE pursuant to Fed.R.Civ.P.41(a).
ANALYSIS
Fed. R Civ. P. 41(a) states:
Subject to the provisions of Rule 23(e), of Rule 66, and of any other statute of the United States, as action may be dismissed by the plaintiff without order of the 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. . . .the dismissal is without prejudice. . .
The court should consider plaintiff's motion as notice of dismissal pursuant to Fed. R Civ. P. 41(a) and enter an order of dismissal without prejudice.
CONCLUSION
The plaintiff does not wish to proceed with this action. No answer or summary judgment motion has been filed by defendants. The Court should consider this motion as notice of dismissal pursuant to Fed. R Civ P. 41(a) and this action should be DISMISSED WITHOUT PREJUDICE. A proposed Order accompanies this Report and Recommendation.