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Donaldson v. Massey & Speek

January 10, 2007

DAVID DONALDSON, PLAINTIFF,
v.
MASSEY & SPEEK, ATTORNEYS AT LAW DEFENDANTS.



The opinion of the court was delivered by: Chief United States District Judge Collier

MEMORANDUM

David Donaldson ("Donaldson"), a pro se prisoner, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Donaldson has submitted a motion to dismiss without prejudice claiming he is a mental patient who knows nothing about the law (Court File No. 7).

On December 18, 2006, this Court entered an order directing Donaldson to file with the Court, within thirty (30) days from the date of the Order, a corrected complaint specifically identifying the type of complaint he was attempting to file and the authority under which he was filing his complaint.*fn1 In addition, Donaldson was ordered to file an in forma pauperis application since he had not paid the $350.00 filing fee or filed an in forma pauperis application. Instead, Donaldson filed this motion to dismiss without prejudice (Court File No. 7).

Rule 41(a)(1) of the FEDERAL RULES OF CIVIL PROCEDURE provides for voluntary dismissal by a plaintiff upon filing a notice of dismissal at any time prior to service by the adverse party of an answer or of a motion for summary judgment. In the instant case the defendants have not been served as Donaldson has not filed a sufficient complaint nor paid the $350.00 filing fee or submitted proper documentation requesting to proceed in forma pauperis. Thus, the filing of the motion to dismiss this action is timely. For the foregoing reasons, the motion to dismiss will be GRANTED (Court File No. 7). See Rule 41(a)(1).Accordingly, this action will be DISMISSED WITHOUT PREJUDICE. The Clerk will be DIRECTED to send a copy of this order to the parties and to close this file.

An appropriate judgment will enter.

CURTIS L. COLLIER CHIEF UNITED STATES ...


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