                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                                                         December 17, 2003
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk
                                   _________________________

                                         No. 03 - 40687
                                     SUMMARY CALENDAR
                                   _________________________

NATHANIEL HOWARD THOMAS,

                       Plaintiff - Appellant,

   v.

LAWRENCE E. PHILLIPS,

                       Defendant - Appellee.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                               Eastern District of Texas
                                    (4:01-CV-372)
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the district court's decision to dismiss Plaintiff - Appellant,

Nathaniel Howard Thomas’s (hereinafter, “Thomas”), 42 U.S.C. § 1983 civil rights complaint.

For the following reasons, we reverse and remand.

                                                   I.



        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                                  -1-
                        FACTUAL AND PROCEDURAL BACKGROUND

        Thomas filed a pro se in forma pauperis civil rights complaint pursuant to 42 U.S.C. §

1983 against his former attorney, Defendant - Appellee, Lawrence Phillips (hereinafter,

“Phillips”). In his complaint, Thomas alleges that Phillips rendered ineffective assistance of

counsel at Thomas’s trial and on appeal.

        The Magistrate Judge conducted an initial screening and concluded that because Phillips

was a private attorney and not a state actor, he could not be sued under 42 U.S.C. § 1983. The

Magistrate Judge recommended that the district court dismiss Thomas’s complaint with prejudice

for failure to state a claim upon which relief could be granted.

        Thomas filed objections to the Magistrate Judge’s Report and Recommendation, and

included a motion for leave to amend his complaint. Thomas also filed a motion for voluntary

dismissal pursuant to FED. R. CIV. P. 41. The district court, however, adopted the Magistrate

Judge’s recommendation and dismissed Thomas’s complaint with prejudice. This appeal timely

followed.

                                                   II.

                                       MOTION TO DISMISS

        Thomas argues that the district court should have allowed him to dismiss his complaint

voluntarily, without prejudice. It is true that a plaintiff may, with certain exceptions, dismiss an

action without court order by filing a notice of dismissal prior to service by the adverse party of

an answer or of a motion for summary judgment. FED. R. CIV. P. 41(a)(1). Thomas’s motion to

dismiss may not have been perfectly clear, but it is not crucial that a pro se plaintiff correctly cite

the provisions of Rule 41. Carter v. United States, 547 F.2d 258, 259 n. 2 (5th Cir. 1977).


                                                  -2-
       The district court does not have the power or discretion to attach any condition or burden

to the plaintiff’s absolute right to dismiss a lawsuit, so long as the conditions established in Rule

41(a)(1) exist. Id. at 259; Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir. 1976). The filing of a

motion to dismiss under Rule 41(a)(1) ends the case, and any attempt to deny relief on the merits

and dismiss with prejudice is void. Id.

       Phillips has not filed an answer, nor has he filed a motion for summary judgment. Further,

there is nothing in the record to suggest that any of the exceptions to Rule 41(a)(1) apply, as (1)

this is not a class action under FED. R. CIV. P. 23; and (2) this case does not involve a receiver

as referenced in FED. R. CIV. P. 66. Finally, there is nothing in the record to indicate that

Thomas has previously dismissed any other suit involving any claim involved in this suit. FED. R.

CIV. P. 41(a)(1). Thus, Thomas had an absolute right to have his suit dismissed without

prejudice, and the district court erred in denying his motion to dismiss. Carter, 547 F.2d at 259.

                                                  III.

                                           CONCLUSION

       For the foregoing reasons, we reverse and remand.




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