Toscani v. Drago, 8:12-cv-03244

This is a §1983 action filed by pro se plaintiff Nico Toscani in the District of South Carolina, Anderson/Greenville Division.
Defendants include Dr. Tomarchio and other medical and corrections personnel; plaintiff moves to withdraw Tomarchio.
All defendants have been served and answered; no dispositive motions have been filed as of the motion.
Plaintiff filed a motion to withdraw Tomarchio on February 5, 2013, which the court treats as a motion to dismiss.
Court allowed dismissal at this early stage without prejudice to defendants due to no prejudice from timing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal of Tomarchio is appropriate.	Toscani seeks dismissal of Tomarchio from the case.	Defendants would not be prejudiced by early dismissal.	GRANTED; dismissal without prejudice.
Whether Rule 41(a)(2) governs dismissal at this stage.	Rule 41(a)(2) permits dismissal on terms the court considers proper.	No prejudice to defendants at this stage.	Dismissal permitted under Rule 41(a)(2).
Whether liberal construction of a pro se complaint affects dismissal decision.	Court should liberally construe pro se pleadings.	Liberality does not prevent dismissal where warranted.	Liberal construction does not bar dismissal; dismissal appropriate.

Estelle v. Gamble, 429 U.S. 97 (1976) (liberal construction of pro se pleadings; standard for dismissal under summary review)
Haines v. Kerner, 404 U.S. 519 (1972) (pro se pleadings are held to less stringent standards)
Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978) (pro se pleadings; standards for addressing claims)
Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) (liberal construction applicable to pro se pleadings)
Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999) (court may not conjure up questions not presented)
Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985) (judicial responsibility not to create issues for plaintiff)