Ian Harris v. Deputy Warden of Care and Treatment ( 2011 )

[DO NOT PUBLISH]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.
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