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Ian Harris v. Deputy Warden of Care and Treatment, 11-10787 (2011)

Court: Court of Appeals for the Eleventh Circuit Number: 11-10787 Visitors: 9
Filed: Dec. 07, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT DECEMBER 7, 2011 No. 11-10787 JOHN LEY Non-Argument Calendar CLERK _ D.C. Docket No. 6:10-cv-00001-BAE-JEG IAN HARRIS, Plaintiff-Appellant, versus DEPUTY WARDEN OF CARE AND TREATMENT, TAMARA BENNETT, LISA WARNOCK, BRYN HIGGINS, Previous Mental Health Director(s) at Georgia State Prison, Defendants-Appellees. _ Appeal from the United States District Court for the Southern
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                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                                                          U.S. COURT OF APPEALS
                          ________________________          ELEVENTH CIRCUIT
                                                             DECEMBER 7, 2011
                                No. 11-10787                     JOHN LEY
                            Non-Argument Calendar                 CLERK
                          ________________________

                    D.C. Docket No. 6:10-cv-00001-BAE-JEG

IAN HARRIS,

                                                                 Plaintiff-Appellant,

                                     versus

DEPUTY WARDEN OF CARE AND TREATMENT,
TAMARA BENNETT,
LISA WARNOCK,
BRYN HIGGINS,
Previous Mental Health Director(s) at Georgia State Prison,

                                                              Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                               (December 7, 2011)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Ian Harris appeals pro se the denial of his motion to withdraw the voluntary

dismissal of his complaint against officials of the Georgia State Prison. We

affirm.

      The officials argue that we lack jurisdiction, but we disagree. Although “a

party cannot appeal from an order granting a Rule 41(a)(2) dismissal,” Ortega

Trujillo v. Banco Central Del Ecuador, 
379 F.3d 1298
, 1301 (11th Cir. 2004), this

Court has “jurisdiction to examine the district court’s refusal to permit [a plaintiff

from] . . . withdraw[ing] [a] voluntary dismissal,” McGregor v. Bd. of Comm’rs of

Palm Beach Cnty., 
956 F.2d 1017
, 1021 (11th Cir. 1992). Harris’s notice of

appeal and amended notice of appeal state that he is challenging the “order [of]

February 3, 2011” that denied his “motion to withdraw” his voluntary dismissal.

The denial of Harris’s motion to withdraw is an appealable ruling.

      The district court did not abuse its discretion by denying Harris’s motion to

withdraw. Before Harris’s motion to withdraw reached the district court, Harris’s

“motion [to dismiss] ha[d] already been granted and the case dismissed.” Because

the district court dismissed Harris’s complaint “without prejudice,” Harris is free

to file another complaint against the officials. Harris cannot fault the district court

for refusing to undo the dismissal Harris had requested.

      We AFFIRM the denial of Harris’s motion to withdraw.

                                           2

Source:  CourtListener

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