IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DANNY KEITH MERTSOCK, : Civil No. 4:15-CV-2363

:

Plaintiff, : (Chief Judge Conner)

:

v. :

: (Magistrate Judge Carlson)

BRADLEY BUCHHOLZ, :

 :

Defendant. :

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This is a civil rights action brought by Danny Mertsock. Prior to the filing of

an answer, Mertsock moved to withdraw and dismiss this complaint. (Doc. 13.)

Consistent with the plain language of this 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.

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II. Discussion

Rule 41(a)(1)(A)(I) ofthe FederalRules ofCivil Procedure provides asfollows

(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, Mertsock 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 DISMISSED and the case CLOSED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within fourteen

(14) days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the portions of the

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proposed findings, recommendations or report to which objection is

made and the basis for such objections. The briefing requirements set

forth in Local Rule 72.2 shall apply. A judge shall make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis of

that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

Submitted this 11th day of March 2016.

S/Martin C. Carlson 

Martin C. Carlson

 United States Magistrate Judge 

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