Caris Lynn McDougald v. Modesto Police Department et al

Filing 94

ORDER CLOSING CASE and VACATING Writ of Habeas Corpus Ad Testificandum in Light of Non-Opposed Request to Dismiss, signed by Judge Oliver W. Wanger on 6/18/10: This case is DISMISSED in its entirety as per Plaintiff's requests for dismissal and Defendants' notice of non-opposition; All currently pending dates, including the June 29, 2010 Trial Date, are VACATED and all pending motions in limine are DENIED as moot; The Court's previously issued Writ of Habeas Corpus Ad Testificandum 82 is VACATED as moot; and The Clerk shall CLOSE this case. (CASE CLOSED)(Hellings, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is incarcerated and proceeding pro se in this 42 U.S.C. § 1983 case. A jury trial is set for June 29, 2010. On June 16, 2010, Plaintiff filed a request for the Court to dismiss this case and to not proceed with trial. See Court's Docket Doc. No. 91. On June 17, 2010, Defendants filed a notice of non-opposition. See id. at Doc. No. 92. The notice of nonopposition indicates that Defendants offered to waive costs and attorney's fees in exchange for Plaintiff dismissing his case. See id. Rule 41(a)(2) of the Federal Rules of Civil Procedure provides: Except as provided in paragraph (1) of this subdivision of this rule, an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff' s motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for ) ) Plaintiff, ) ) v. ) ) MODESTO POLICE DEPARTMENT ) OFFICER RAMAR, and OFFICER ) CAMPBELL, ) ) Defendants. ) ) ____________________________________) CARIS LYNN McDOUGALD, 1:08-CV-238 OWW DLB ORDER CLOSING CASE AND VACATING WRIT OF HABEAS CORPUS AD TESTIFICANDUM IN LIGHT OF NON-OPPOSED REQUEST TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

(Doc. Nos. 80, 81, 82)

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independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice Fed. R. Civ. Pro. 41(a)(2).

3 In examining a request for dismissal under Rule 41(a)(2), a district court "must determine 4 whether the defendant will suffer some plain legal prejudice as a result of the dismissal." 5 Westland Water Dist. v. United States, 100 F.3d 94, 96 (9t h Cir. 1996). "A district court should 6 grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it 7 will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9t h Cir. 8 2001). Rule 41(a)(2) does not forbid dismissal of a plaintiff's suit where a plaintiff is proceeding 9 pro se. See Williams v. Peralta Cmty. College Dist., 227 F.R.D. 538 (N.D. Cal. 2005) (granting 10 a Rule 41(a)(2) dismissal where the plaintiff was pro se); Boles v. City of Manzanita, 2004 U.S. 11 Dist. LEXIS 29335, *1 (D. Or. 2004) (same). 12 Here, the notice of non-opposition indicates that the parties have essentially settled this 13 case. Based on the notice of non-opposition, there is no prejudice to Defendants. The Court will 14 grant Plaintiff's requested dismissal and close this case. 15 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. 18 Defendants' notice of non-opposition; 19 2. 20 all pending motions in limine are DENIED as moot; 21 3. 22 VACATED as moot; and 23 4. 24 IT IS SO ORDERED. 25 26 27 28 2 Dated: June 18, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE The Clerk shall CLOSE this case. The Court's previously issued Writ of Habeas Corpus Ad Testificandum (Doc. No. 82) is All currently pending dates, including the June 29, 2010 Trial Date, are VACATED and This case is DISMISSED in its entirety as per Plaintiffs's requests for dismissal and