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Chris Ann Darlington v. State of Illinois Department of Human Services

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


May 13, 2011

CHRIS ANN DARLINGTON, PLAINTIFF,
v.
STATE OF ILLINOIS DEPARTMENT OF HUMAN SERVICES, WILLIAM W. FOX DEVELOPMENTAL CENTER,
DEFENDANTS.

The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Monday, 16 May, 2011 09:36:25 AM Clerk, U.S. District Court, ILCD

ORDER & OPINION

Plaintiff filed her pro se Complaint in this action on November 1, 2010, alleging a claim of employment discrimination in violation of Title VII of the Civil Rights Act of 1964. (Doc. 1). Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (Doc. 2) and a Motion to Appoint Counsel (Doc. 3), however these requests were denied by Magistrate Judge Cudmore. (Text Order of 11/2/2010). On February 8, 2011, Plaintiff filed another Motion seeking appointment of counsel, or an increase in the amount of time within which to perfect service upon Defendant.

(Doc. 4). Magistrate Judge Cudmore granted Plaintiff until March 1, 2011 to serve Defendant, and advised her to contact the Clerk's Office to obtain summons. (Text Order of 2/9/2011). Although Summons were issued on March 2, 2011, Plaintiff had not yet served Defendant as of March 28, 2011, and Judge Cudmore issued another order directing Plaintiff to serve Defendant by April 18, 2011, or risk dismissal of her suit for failure to prosecute. (Text Order of 3/28/2011).

As Plaintiff had not yet indicated to the Court that she had perfected service upon Defendant by May 10, 2011, Magistrate Judge Cudmore entered a Report and Recommendation recommending that Plaintiff's Complaint be dismissed for lack of prosecution. (Doc. 8). In response, Plaintiff did not object, but rather filed her own Motion to Dismiss her Complaint, along with an executed summons showing that she had attempted service upon Defendant on April 14, 2011, which was within the time allowed by Magistrate Judge Cudmore.*fn1 (Docs. (9 & 10). Because Plaintiff has sought to voluntarily dismiss her case, Magistrate Judge Cudmore's Report and Recommendation is MOOT. Federal Rule of Civil Procedure 41(a)(1) allows for a Plaintiff to voluntarily dismiss her lawsuit if she files a notice of dismissal before the Defendant has filed an answer or a motion for summary judgment. Here, although Plaintiff has indicated that she attempted to serve Defendant on April 14, 2011, Defendant has not yet appeared or filed an answer.*fn2 Accordingly, Plaintiff's Motion to Dismiss (Doc. 10) is GRANTED and Plaintiff's Complaint is DISMISSED.

IT IS SO ORDERED.

CASE TERMINATED.

Joe B. McDade


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