Opinion
Case No. 03-3143-JAR.
February 28, 2005
ORDER
Plaintiff, a prisoner in federal custody, originally filed this case while in the custody of the state of Kansas, against Sheriff Henderson of the Reno County Jail in Reno county, Kansas; Jay Shelton, the warden of the Norton Correctional Facility in Norton county, Kansas; and the medical clinic staff of the Norton Correctional Facility. Plaintiff later amended his complaint to add, as defendants, Reno county sheriff's department officers Detective Shipley and Loren Beshore.
See Complaint (Doc. 1), March 24, 2003.
See Amended Complaint (Doc. 5), June 25, 2003.
On January 5, 2004, U.S. Senior Judge G. Thomas VanBebber, entered an order dismissing plaintiff's claims against all defendants, except defendants Shipley and Beshore, and dismissing all claims arising from plaintiff's confinement at the Norton Correctional Facility. The case was then reassigned to the undersigned for all further proceedings on January 6, 2004. The case was referred to U.S. Magistrate Judge K. Gary Sebelius for pretrial management.
See Order (Doc. 6), January 5, 2004.
Minute Order Reassigning Case (Doc. 7), January 6, 2004.
Minute Order Referring Case (Doc. 16), May 14, 2004.
On February 25, 2005, Judge Sebelius convened a scheduling conference in the case, via telephone, to establish a schedule for the completion of all discovery and pretrial activities. Plaintiff appeared pro se and was assisted with English to Spanish translation by Mr. Jerry Arzate, a staff member at the Eden Detention Center where plaintiff is currently incarcerated. Defendants appeared through counsel, Michael E. Baker.
During the conference, Judge Sebelius inquired of the parties regarding their understanding of the case and the claims being asserted by plaintiff. Plaintiff informed the court that he had brought this case to redress an alleged back-injury that he contends he incurred while working in the kitchen at the Norton Correctional Facility in Norton county, Kansas. Judge Sebelius explained to plaintiff that the claims he had previously asserted arising from his confinement in the Norton Correctional Facility had been dismissed from the case by Judge VanBebber. Judge Sebelius asked plaintiff whether he had seen a copy of Judge VanBebber's order dismissing those claims. Plaintiff responded that he had possessed a copy of the order at one time, but that all of his paperwork had been taken from him at some point while in state custody.
See Order (Doc. 6), January 5, 2004.
Plaintiff indicated that he had not intended to bring any claims against the remaining defendants Shipley and Beshore. When Judge Sebelius asked plaintiff why then he had included claims against these defendants, he indicated that they must have been added as a result of another inmate helping him with his paperwork because he did not intend to sue any police officers. Judge Sebelius then asked plaintiff if he wished to maintain his claims against defendants Shipley and Beshore, and plaintiff indicated that he did not.
Judge Sebelius informed the parties that he would treat plaintiff's statements as an oral motion to dismiss plaintiff's claims against defendants Shipley and Beshore without prejudice and would inform the undersigned of that motion and the various statements made during the scheduling conference. Defendants' counsel did not oppose the motion or request that any conditions be placed upon dismissal. Judge Sebelius reiterated to plaintiff that the claims against defendants Shipley and Beshore were the only claims remaining in this case and explained that, if those claims were dismissed, that such an action would likely result in the entire case being dismissed and closed by the court.
Plaintiff indicated that he only wanted to go forward with claims related to his alleged injury while in custody at the Norton Correctional Facility. Judge Sebelius explained that those claims had been dismissed by Judge VanBebber for failure to exhaust the administrative grievance procedure and that those claims could not be advanced in this case at this time.
Judge Sebelius then informed the undersigned of the conversation between the parties and the court during the scheduling conference and of plaintiff's oral motion to dismiss his claims. It being apparent to the undersigned that it is plaintiff's intention to abandon his claims against defendants Shipley and Beshore, and to have those claims dismissed without prejudice, the court finds that plaintiff's oral motion to dismiss shall be granted. Because the granting of plaintiff's motion disposes of all the remaining claims outstanding in this matter, the court finds that this case shall also be closed administratively and that the pending motions, to withdraw as attorney for defendants in this matter by attorney Jerrod A. Westfahl and for summary judgment by defendants Shipley and Beshore, have now become moot.
IT IS THEREFORE ORDERED that, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, plaintiff's oral motion to dismiss is hereby GRANTED. This case is dismissed without prejudice.
IT IS FURTHER ORDERED that the motion to withdraw as attorney for defendants of attorney Jerrod A. Westfahl (Doc. 28) and the motion for summary judgment of defendants Shipley and Beshore (Doc. 30) are hereby found to be moot.