Martin v. Winett, et al

Filing 150

ORDER REQUIRING Plaintiff to Notify Court if he Wishes to Withdraw his Request for Voluntary Dismissal; Thirty-Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 5/2/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC MARTIN,

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CASE NO. 1:04-cv–05358-LJO-BAM PC
Plaintiff,

ORDER REQUIRING PLAINTIFF TO NOTIFY
COURT IF HE WISHES TO WITHDRAW HIS
REQUEST FOR VOLUNTARY DISMISSAL

v.
DAVID WINETT, et al.,

(ECF No. 147)

Defendants.

THIRTY-DAY DEADLINE
/

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Plaintiff Eric Martin (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. Following the United States Court of Appeals for the Ninth

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Circuit order affirming the grant of Defendants’ motion for summary judgment, but finding that

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Plaintiff’s Eighth Amendment claims against Defendant Winnett and Due Process claims against

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Defendants Johnson, Stainer, and Winnett had been improperly dismissed at the screening stage, this

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action is proceeding on the limited claims revived by the Ninth Circuit. On November 22, 2011,

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Defendants filed a motion for summary judgment. After being granted three extensions of time to

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file an opposition, Plaintiff filed a notice of voluntary dismissal, requesting the action be dismissed

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without prejudice on March 30, 2012. (ECF No. 147.) The Court ordered Defendants to file an

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opposition or statement of non-opposition to Plaintiff’s motion for voluntary dismissal, and

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Defendants filed an opposition on April 30, 2012. (ECF No. 148, 149.)

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“[U]nder Rule 41(a)(1)(I), ‘a plaintiff has an absolute right to voluntarily dismiss his action

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prior to service by the defendant of an answer or a motion for summary judgment.’” Commercial

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Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v.
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City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). In the instant action, Defendants filed a motion

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for summary judgment prior to Plaintiff filing his notice of voluntary dismissal, therefore Plaintiff

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is not entitled to voluntary dismissal under Rule 41. Pursuant to Rule 41(a)(2) “an action may be

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dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”

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This action was filed on March 1, 2004. Given the age of this action, the history of the

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proceedings, and the pending summary judgment motion, the Court finds that it would not be proper

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to dismiss this action without prejudice, as requested by Plaintiff. If the Court grants Plaintiff’s

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request for voluntary dismissal, the action will be dismissed with prejudice.

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Accordingly, IT IS HEREBY ORDERED that:
1.

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Plaintiff shall notify the Court, within thirty days from the date of service of this
order, if he wishes to withdraw his request for voluntary dismissal.

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If Plaintiff’s request for voluntary dismissal is withdrawn, Plaintiff shall file an

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opposition to Defendants’ motion for summary judgment, within thirty days from the

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date of service of this order; and

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3.

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If Plaintiff’s request for voluntary dismissal is not withdrawn within thirty days, the
court will issue an order dismissing this action, with prejudice.

IT IS SO ORDERED.
Dated:
cm411

May 2, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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