Underwood v. Knowles et al
Filing
107
ORDER GRANTING Plaintiff's 100 Motion to Dismiss; ORDER DISMISSING Defendant Lantz from this Action Pursuant to Rule 41 signed by Magistrate Judge Gary S. Austin on 7/15/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VALENTINE E. UNDERWOOD,
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Plaintiff,
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1:08-cv-00986-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS
(Doc. 100.)
v.
M. KNOWLES, et al.,
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ORDER DISMISSING DEFENDANT
LANTZ FROM THIS ACTION PURSUANT
TO RULE 41
Defendants.
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I.
BACKGROUND
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Plaintiff Valentine E. Underwood (“Plaintiff”) is a state prisoner proceeding pro se with this
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civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this
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action on July 17, 2008. (Doc. 1.) This action now proceeds on the original Complaint, against
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defendants Northcutt and Martin for retaliation, in violation of the First Amendment; and against
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defendants Northcutt, Martin, Caviness, Lantz, Trujillo, Truitt, and Fambrough ("Defendants") for
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use of excessive force physical force, in violation of the Eighth Amendment.1 The parties have
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consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and on June 15, 2011, this
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case was reassigned to the undersigned for all further proceedings. (Docs. 4, 97, 102.)
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On December 7, 2010, Defendants filed a Statement of Fact of Death suggesting the death
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of defendant Seth Lantz. (Doc. 72.) On June 10, 2011, Plaintiff filed a motion to dismiss defendant
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Seth Lantz from this action. (Doc. 100.) On July 14, 2011, defendants Northcutt, Martin, Caviness,
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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.)
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Trujillo, Truitt, and Fambrough filed a notice of their consent to the dismissal of defendant Seth
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Lantz. (Doc. 106.)
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II.
MOTION TO DISMISS UNDER RULE 41
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Plaintiff requests that defendant Lantz be dismissed from this action in light of Defendants’
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statement suggesting defendant Lantz’s death. Plaintiff asserts that he does not wish to file a motion
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under Rule 25 to substitute defendant Lantz’s successors in place of defendant Lantz in this action.
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(Doc. 100.) Under Rule 41 of the Federal Rules of Civil Procedure, "the plaintiff may dismiss an
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action [against a defendant] without a court order by filing a notice of dismissal before the opposing
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party serves either an answer or a motion for summary judgment; or a stipulation of dismissal signed
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by all parties who have appeared." Fed. R. Civ. P. 41(a)(1)(A). In this case, defendants Fambrough,
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Lantz, Northcutt, Truit, and Trujillo filed an answer to the complaint on March 17, 2010, and
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defendants Martin and Caviness filed an answer to the complaint on April 8, 2011. (Docs. 40, 90.)
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Plaintiff’s motion and the written consent of defendants Northcutt, Martin, Caviness, Trujillo, Truitt,
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and Fambrough act as a stipulation of dismissal signed by all parties who have appeared. Therefore,
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Plaintiff’s motion to dismiss shall be granted, and defendant Seth Lantz shall be dismissed from this
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action under Rule 41.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that:
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Plaintiff’s motion to dismiss, filed on June 10, 2011, is GRANTED;
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2.
Defendant Seth Lantz is DISMISSED from this action under Rule 41; and
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3.
The Clerk is DIRECTED to reflect the dismissal of defendant Lantz from this action
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on the court’s docket.
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IT IS SO ORDERED.
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Dated:
6i0kij
July 15, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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