Ashley v. Oliver et al, No. 9:2010cv00133 - Document 23 (E.D. Tex. 2011)

Court Description: MEMORANDUM OPINION and Order of Partial Dismissal. The oral motion to dismiss should be granted and the claims against Nurse Hough and Dr. Fomby are dismissed without prejudice. Signed by Magistrate Judge Judith K. Guthrie on 5/12/11. (ljw, )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION CARLOS ASHLEY, #351651 § VS. § WARDEN OLIVER, ET AL. § CIVIL ACTION NO. 9:10cv133 MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL Plaintiff Carlos Ashley, a prisoner confined at the Eastham Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c). On April 7, 2011, the Court conducted an evidentiary hearing in accordance with Spears v. McCotter, 766 F.2d 179, 182 (5th Cir. 1985), wherein the Plaintiff's various claims were considered. During the hearing, the Plaintiff testified that he included Nurse Hough and Dr. Fomby on the list of defendants because he wanted them included in the case as witnesses. Both of them had helped him. He did not intend to sue them. A plaintiff is entitled to voluntarily dismiss a case before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1). The Defendants have not filed an answer or any other responsive pleading in the case. The oral motion to dismiss should be granted. It is therefore 1 ORDERED that the oral motion to dismiss be granted and that the claims against Nurse Hough and Dr. Fomby are DISMISSED without prejudice. Fed. R. Civ. P. 41(a)(1). So ORDERED and SIGNED this 12 day of May, 2011. ____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.