Case Information
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION
Nico Coty Toscani, Plaintiff, v.
Dr. Paul C. Drago; Dr. John B. Mcree; Dr. John B. Tomarchio; Warden Willie Eagleton; Major West; RN Linda C. Tyler; Nurse Krystal S. Hill; RN Kelly M. Morton; HCA Amy L. Smith; RN Patricia D. Perry; CCC Michele D. Fox; RN Lisa Neely; Sgt. Gaddy, Defendants.
Case No. 8:12-cv-03244-MGL-JDA
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion to withdraw Defendant Dr. John B. Tomarchio filed by Plaintiff. [Doc. 28.] Plaintiff is proceeding pro se and brings this civil rights action pursuant to 42 U.S.C. § 1983. [Doc. 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard
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than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett . City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under the Federal Rules of Civil Procedure, a plaintiff may request the court to dismiss his action. Fed. R. Civ. P. 41(a)(2). The court may dismiss the action "on terms that the court considers proper." Id. Unless the court orders otherwise, dismissal of an action at the plaintiff's request is without prejudice. Id.
DISCUSSION
On February 5, 2013, Plaintiff filed a motion to withdraw Defendant Dr. John B. Tomarchio ("Tomarchio") [Doc. 28], which the Court has construed as a motion to dismiss Tomarchio. At this stage in the proceedings, all Defendants, including Tomarchio, have been served and have filed an Answer. [Docs. 22, 24.] No dispositive motions are pending; dispositive motions are due from Defendants by March 1, 2013 [see Doc. 14 at 3 (setting deadline for dispositive motions as 45 days after an answer is filed)]. Therefore, the Court concludes there would be no prejudice to Defendants to dismiss Tomarchio at this early stage of the proceedings.
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CONCLUSION
Wherefore, based upon the foregoing, the Court recommends Plaintiff's motion to withdraw Dr. John B. Tomarchio [Doc. 28] be GRANTED.
IT IS SO RECOMMENDED. s/Jacquelyn D. Austin United States Magistrate Judge February 6, 2013 Greenville, South Carolina