Opinion
Civil Action No. 09-cv-00240-CMA-BNB.
February 1, 2010
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE
This matter is before the Court on Plaintiff's Motion to Dismiss this action without prejudice (Doc. # 28). Plaintiff, a pro se prisoner and inmate at a Colorado state correctional facility, filed this 42 U.S.C. § 1983 action against Defendants, employees of the state facility, for alleged harassment, retaliation, and due process violations. Plaintiff now seeks to withdraw this action because of medical conditions which presently render him unable to prosecute this action.
The Court notes that, at this juncture in the proceedings, Plaintiff may dismiss his action without leave of court. See F. R. Civ. P. 41(a) (a plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment). No answer or motion for summary judgment has been filed in this case. Rather, Defendants filed a Motion to Dismiss on May 22, 2009 (Doc. # 19). However, a motion to dismiss does not affect a plaintiff's right to voluntarily dismiss his lawsuit. See Muller v. TSC Indus., No. 92-4084, 1992 WL 223766, at *1 (D. Kan. Aug. 26, 1992). Further, Fed.R.Civ.P. 41 sets forth a "bright line rule" for voluntary dismissal and "does not provide discretion for the court to consider other reasons for preventing dismissal." Id.
Accordingly, for the foregoing reasons, it is ORDERED that Plaintiff's Motion to Dismiss Without Prejudice (Doc. # 28) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED WITHOUT PREJUDICE.