Dehar v. Diaz et al

Filing 9

ORDER that the Court construes 8 Plaintiff's Motion to Dismiss as a notice of voluntary dismissal. The Clerk must enter a judgment of dismissal of this action with prejudice. Signed by Judge Robert C Broomfield on 11/7/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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DONALD CORY DEHAR,
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Plaintiff,
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vs.
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WARDEN DIAZ, et al.,
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Defendants.
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No. CV 11-1735-PHX-RCB (MHB)
ORDER

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Plaintiff Donald Cory Dehar, who is confined in the Arizona State Prison Complex,

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Barchey Unit, in Buckeye, Arizona, filed a pro se civil rights Complaint pursuant to 42

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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) In an Order

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filed on October 17, 2011, the Court granted Plaintiff leave to proceed in forma pauperis and

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dismissed his Complaint for failure to state a claim with leave to amend within 30 days.

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(Doc. 6.) On November 1, 2011, Plaintiff filed a motion to dismiss “with prejudice” and that

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this Court’s Order “be set aside for the Amended Complaint and that the entire claims be

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dismissed all with prejudice.” (Doc. 8.) The Court construes the motion to dismiss as a

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notice of dismissal pursuant to Rule 41(a) of the Federal Rules of Procedure.

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Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides in relevant part

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that a “plaintiff may dismiss an action without a court order by filing: a notice of dismissal

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before the opposing party serves either an answer or a motion for summary[.]” Rule

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41(a)(1)(B) provides in relevant part that “[u]nless the notice ... states otherwise, the

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dismissal is without prejudice.”

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The Court will construe Plaintiff’s motion to dismiss as a notice of voluntary dismissal

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pursuant to Rule 41 of the Federal Rules of Civil Procedure. Further, because Plaintiff

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specifically seeks to voluntarily dismiss this action with prejudice, the case will be dismissed

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with prejudice.

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IT IS ORDERED:

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(1)

The Court construes Plaintiff’s motion to dismiss as a notice of voluntary

dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure. (Doc. 8.)
(2)

The Clerk of Court must enter a judgment of dismissal of this action with

prejudice pursuant to Plaintiff’s notice, doc. 8.
DATED this 7th day of November, 2011.

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