Unpublished Dispositionjohn M. Burkey, Plaintiff-appellant, v. Terry L. Morris; Wayne Walters, Defendant-appellees, 838 F.2d 470 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 838 F.2d 470 (6th Cir. 1988) Feb. 3, 1988



This matter is before the court upon consideration of the appellees' motion to dismiss this appeal which was taken from an order granting a voluntary dismissal of the action pursuant to Fed. R. Civ. P. 41(a) (1). Appellant has filed a response in which he argues the merits of his appeal. Appellant's appellate brief contains a statement that the district court's judgment was incorrect because his motion to dismiss was not voluntary.

A review of the record indicates that appellant filed a 28 U.S.C. § 1983 complaint in the district court on October 16, 1986. A magistrate filed a report and recommendation on March 13, 1987, recommending that the case be dismissed. Appellant filed several documents objecting to the report and recommendation. Prior to the district court's ruling on the report and recommendation, appellant filed a motion for dismissal of the action pursuant to Fed. R. Civ. P. 41(a) (1) and withdrawal of original documents from the files of the case pursuant to Local Rule 3.4.6. On August 10, 1987, the district court granted the motion to dismiss and dismissed the action without prejudice. Appellant filed a notice of appeal on August 27, 1987, in which he stated that the motion to dismiss "was not solely voluntary and knowingly made...."

A party who has sought and been granted a voluntary dismissal of his case without prejudice cannot appeal the order granting the voluntary dismissal. Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir. 1987); Management Investors v. United Mine Workers' of Am., 610 F.2d 384, 393 (6th Cir. 1979). An order entered by a court with a party's consent is not appealable unless the district court lacked jurisdiction or the party did not actually consent to the order. White v. Commissioner, 776 F.2d 976 (11th Cir. 1985) (per curiam); Thonen v. Jenkins, 455 F.2d 977 (4th Cir. 1972) (per curiam). Although appellant states that the dismissal was not voluntary, no facts have been presented to nullify the voluntariness of the motion to dismiss.

It is ORDERED that the motion to dismiss be granted. Rule 8, Rules of the Sixth Circuit.