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Gillespie v. Frank

All UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


December 15, 2009

ANTHONY GILLESPIE, PLAINTIFF,
v.
LISA FRANK, CORRECTIONAL OFFICER; DEMARCO, CORRECTIONAL SERGEANT; J. MOORE, CORRECTIONAL SGT.; MOORE, CIVILIAN COOK CORRECTIONAL FOOD SERVICE; AND PETER BRUYEORE, CIVILIAN COOK , CORRECTIONAL FOOD SERVICES, ALL OF GOUVERNEUR CORRECTIONAL FACILITY, DEFENDANTS.

The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION AND ORDER

Plaintiff Anthony Gillespie commenced this action pro se, and now requests that the action be voluntarily dismissed. Dkt. No. 22. Plaintiff indicates that he "is overload[ed] with other cases elsewhere and plaintiff could not prosecute an action or proceed[ ] diligently under Fed. R. Civ. P. 41.2(a)." Id. Plaintiff further states that he understands that the "granting of the application shall in no way relieve [him] of the obligation to pay the full amount of the filing fee." Id. Defendants have appeared in this action by filing a motion to dismiss. Dkt. No. 16. Defendants indicate that they "consent to plaintiff's request . . . that this action be dismissed." Dkt. No. 23.

Having reviewed the matter, plaintiff's application is construed as seeking voluntary dismissal of this action pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Since defendants have neither answered nor moved for summary judgment, plaintiff is entitled to voluntary dismissal of the action, without further order of the court, upon the filing of such a notice. Fed. R. Civ. P. 41(a)(1)(A)(i).*fn1 And, by rule, in the event that plaintiff has not previously once dismissed an action based upon the same circumstances in this or any other court of competent jurisdiction, the dismissal is properly without prejudice unless the notice states otherwise.*fn2 Id.

In light of the foregoing, upon the filing of plaintiff's notice, this action was dismissed, without prejudice, and an order of the court was not required in order to implement that dismissal. Additionally, since this action is dismissed, defendants' motion to dismiss (Dkt. No. 16) is denied as moot.

THEREFORE, it is ORDERED that

1. The Clerk of the Court close this case and reflect that the action is voluntarily dismissed without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure;

2. Defendants' motion to dismiss (Dkt. No. 16) is denied as moot; and

3. The Clerk shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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