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Gessner v. Fioretti

United States District Court, M.D. Pennsylvania

March 28, 2014

AMANDA GESSNER, Plaintiff,
v.
GARY ANTHONY FIORETTI, et al., Defendants.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Statement of Facts and of the Case

This is a civil rights action brought by Amanda Gessner, a state inmate. Gessner's pro se civil rights complaint was initially filed on January 22, 2014. (Doc. 1) On a screening review, we recommended that this complaint be dismissed, in part, and served, in part (Doc. 5, a recommendation which the district court adopted, directing service of the complaint upon the individual defendant named in that complaint on March 12, 2014. (Doc. 13) While service of the complaint was pending, on March 28, 2014, Gessner moved to withdraw and dismiss this complaint. (Doc. 15) Consistent with the plain language of Gessner's pleading, we liberally construe this document as a motion pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure seeking to voluntarily dismiss this complaint. Construed in this way, for the reasons set forth below, we believe that the plaintiff is entitled to request that his own case be dismissed. Therefore, it is recommended that the motion to dismiss be granted.

II. Discussion

Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides as follows

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(I) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.

F.R.Civ. P., Rule 41(a)(1)(i).

In this case it appears that no answer or summary judgment motion has been filed. Therefore, Gessner should be permitted under Rule 41 to dismiss this case.

III. Recommendation

For the foregoing reasons, IT IS RECOMMENDED that the plaintiff's complaint be ...


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