Joaquin Palmer v. Lieutenant Bobo et al

Filing 56

ORDER DISMISSING ACTION by Judge John A Kronstadt. IT IS HEREBY ORDERED that the instant action is DISMISSED WITH PREJUDICE AS TO DEFENDANT BOBO and DISMISSED WITHOUT PREJUDICE AS TO ALL OTHER DEFENDANTS. **See Order for details.**, Case Terminated. Made JS-6. (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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JOAQUIN PALMER,

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Plaintiff,

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v.

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LIEUTENANT BOBO, et al.,

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Defendants.

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No. CV 10-9004-JAK (PLA)
ORDER DISMISSING ACTION

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Plaintiff, a prisoner presently incarcerated at the California State Prison in Lancaster,

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California, filed a pro se civil rights action in this Court on December 6, 2010, after being granted

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leave to proceed in forma pauperis. On February 16, 2011, plaintiff filed a First Amended

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Complaint (“FAC”).

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On January 23, 2012, plaintiff filed a “Motion [f]or Voluntary Termination [o]f Action” (dated

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January 19, 2012), in which he requested “dismissal of this action” and stated that he would

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“concede with prejudice the dismissal of this action as to defendant ‘BOBO’ only.” From that

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motion, it was unclear whether, as to the remaining unserved defendants, plaintiff sought dismissal

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without prejudice to refile the action in the future, or whether he intended to pursue this action as

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to those defendants at this time. Thus, on January 27, 2012, the Magistrate Judge ordered

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plaintiff to file, no later than February 10, 2012, a request for dismissal that specifically stated his

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intention as to all defendants. Plaintiff failed to respond to the January 27, 2012, Order by the

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February 10, 2012, deadline, and on February 24, 2012, the Magistrate Judge issued an Order

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to Show Cause why the FAC should not be dismissed for failure to prosecute and failure to follow

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Court orders.

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On March 8, 2012, when it appeared that plaintiff may not have received the Orders of

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January 27, 2012, and February 24, 2012, the Magistrate Judge sua sponte extended plaintiff’s

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time to respond to both Orders to no later than March 29, 2012, and sent a copy of the January

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27, 2012, and February 24, 2012, Orders to plaintiff along with the March 8, 2012, Order.

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In response to the Orders of January 27, 2012, February 24, 2012, and March 8, 2012,

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plaintiff has now filed a “Motion for Voluntary Termination of Action Against Lieutenant Bobo,” in

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which he requests that the Court “terminate all litigation against Lt. Bobo with prejudice” and, as

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to the remaining unserved defendants, “dismiss ‘without prejudice’ to refile ... in the future.” Rule

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41(a)(2) of the Federal Rules of Civil Procedure allows for voluntary dismissal of an action by a

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plaintiff pursuant to a Court order “on terms that the court considers proper.” Fed.R.Civ.P.

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41(a)(2). “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless

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a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches,

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263 F.3d 972, 975 (9th Cir. 2001) (internal citation omitted). As plaintiff seeks dismissal of this

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action with prejudice as to defendant Bobo, the Court discerns no legal prejudice to defendant

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Bobo from dismissal. Moreover, as none of the other defendants in this action were served with

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the FAC, the Court discerns no legal prejudice from dismissal without prejudice as to those

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defendants. Accordingly, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, it is

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hereby ordered that the instant action is dismissed with prejudice as to defendant Bobo and

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dismissed without prejudice as to all other defendants.

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DATED: April 5, 2012
HONORABLE JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE