UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
January 15, 2008
BRUCE X. COOPER, PLAINTIFF
JEFFREY BEARD, ET AL., DEFENDANTS
The opinion of the court was delivered by: Judge Kosik
Bruce X. Cooper, an inmate presently confined at the State Correctional Institution at Frackville, Pennsylvania, initiated this civil rights action pursuant to 42 U.S.C. § 1983. Defendants filed a Notice of Removal on March 30, 2007. Cooper names six (6) Department of Corrections employees, most employed at SCIFrackville. On July 2, 2007, a motion to dismiss filed by Defendants was granted in part and denied in part. The motion was granted to the extent that Defendant Beard was dismissed from this action. (Doc. 16.) The remaining Defendants were directed to file an answer to the complaint. An answer was thereafter submitted on July 30, 2007. (Doc. 22.) Presently pending is Plaintiff's Motion to Withdraw the Complaint filed on January 11, 2008. (Doc. 35.) In the motion Plaintiff states that he and the Defendants have reached a settlement in this matter and that he wishes to withdraw the pending action. He does not attach a copy of the signed agreement. Nevertheless, in the motion, Plaintiff clearly requests to withdraw the complaint and have the action dismissed. He requests the dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1).*fn1 Because an answer has been filed by Defendants in this case and Plaintiff has not filed a copy of a stipulation of dismissal signed by all parties, the pending motion will be construed as a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2).*fn2 The court will grant Plaintiff's motion and his action will be dismissed without prejudice to his renewal of his claims. However, Plaintiff is forewarned that renewal of his claims is subject to Pennsylvania's statute of limitations for a personal injury action. See Wilson v. Garcia, 471 U.S. 261, 276 (1985).
ACCORDINGLY, THIS 15th DAY OF JANUARY, 2008, IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion to Withdraw (Doc. 35) is construed as a request for voluntary dismissal of his civil rights claims under Federal Rule of Civil Procedure 41(a)(2).
2. The request for voluntary dismissal (Doc. 35) is granted and the complaint is dismissed without prejudice.
3. Plaintiff's pending motion to compel (Doc. 29) is dismissed as moot.
4. The Clerk of Court is directed to close this case.
EDWIN M. KOSIK United States District Judge