Underwood v. Knowles et al
ORDER for Defendants Northcutt, Martin, Caviness, Trujillo, Truitt and Fambrough to Respond to Plaintiff's 100 Motion to Dismiss within Thirty Days signed by Magistrate Judge Gary S. Austin on 06/14/2011. Responses due by 7/18/2011.(Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
VALENTINE E. UNDERWOOD,
ORDER FOR DEFENDANTS
NORTHCUTT, MARTIN, CAVINESS,
TRUJILLO, TRUITT AND FAMBROUGH
TO RESPOND TO PLAINTIFF'S MOTION
TO DISMISS WITHIN THIRTY DAYS
M. KNOWLES, et al.,
Plaintiff Valentine E. Underwood (“plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the
complaint on July 17, 2008. (Doc. 1.) This action now proceeds on the original complaint,
against defendants Northcutt and Martin for retaliation, in violation of the First Amendment; and
against defendants Northcutt, Martin, Caviness, Lantz, Trujillo, Truitt, and Fambrough
("Defendants") for use of excessive force physical force, in violation of the Eighth Amendment.1
On December 7, 2010, Defendants filed a Statement of Fact of Death suggesting the death
of defendant Seth Lantz. (Doc. 72.) On June 10, 2011, plaintiff filed a motion to dismiss
defendant Seth Lantz from this action. (Doc. 100.)
All other claims and defendants were dismissed by the Court on October 21, 2009, based on Plaintiff’s
failure to state a claim. (Doc. 31.)
Plaintiff requests that defendant Lantz be dismissed from this action in light of
Defendants’ statement suggesting defendant Lantz’s death. Plaintiff asserts that he does not wish
to file a motion under Rule 25 to substitute defendant Lantz’s successors in place of defendant
Lantz in this action. (Doc. 100.) Under Rule 41 of the Federal Rules of Civil Procedure, "the
plaintiff may dismiss an action [against a defendant] without a court order by filing a notice of
dismissal before the opposing party serves either an answer or a motion for summary judgment;
or a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. P.
41(a)(1)(A). In this case, defendants Fambrough, Lantz, Northcutt, Truit, and Trujillo filed an
answer to the complaint on March 17, 2010, and defendants Martin and Caviness filed an answer
to the complaint on April 8, 2011. (Docs. 40, 90.) Therefore, before plaintiff can dismiss
defendant Lantz from this action pursuant to Rule 41, defendants Northcutt, Martin, Caviness,
Trujillo, Truitt, and Fambrough must consent in writing to the dismissal. These defendants shall
be required to respond in writing to plaintiff's motion to dismiss.
Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of service of
this order, defendants Northcutt, Martin, Caviness, Trujillo, Truitt, and Fambrough shall respond
in writing to plaintiff's motion to dismiss of June 10, 2011, indicating whether they consent to the
dismissal of defendant Seth Lantz, or whether they have any reason to oppose the dismissal.
IT IS SO ORDERED.
June 14, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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