Opinion
3:20-CV-473-CLC-HBG
08-04-2021
AUSTIN SUMMITT, Plaintiff, v. CORPORAL LONGMIRE and CORPORAL DYCZARICK, Defendants.
MEMORANDUM
CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE
Plaintiff Austin Summitt, a prisoner proceeding pro se and in forma pauperis in this civil rights action for violation of 42 U.S.C. § 1983, has filed a motion to dismiss his Complaint without prejudice [Doc. 51]. Defendants have not responded to the motion, and the deadline to do so has passed. See E.D. Tenn. L.R. 7.1.
Defendants have each filed answers in this cause [Docs. 26, 43], and Defendant Dyczarick has filed a motion for summary judgment [Doc. 27]. Therefore, this action may be dismissed only upon order of the Court. See Fed.R.Civ.P. 41(a)(2) (providing that where answer or motion for summary judgment has been filed, action may be dismissed at plaintiff's request only upon court order and on proper terms). Having duly considered the matter, the Court finds Plaintiff's motion well taken. Accordingly, Plaintiff's motion [Doc. 51] will be GRANTED, and this action will be DISMISSED WITHOUT PREJUDICE. In addition, Defendant Dyczarick's motion for summary judgment [Doc. 27] will be DENIED AS MOOT.
Further, the Court CERTIFIES that any appeal from this decision would not be taken in good faith, and therefore, Plaintiff will be DENIED leave to appeal in forma pauperis on any subsequent appeal. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.