Paul v. Doe et al

Filing 13

ORDER GRANTING 12 Plaintiff's Motion for Voluntary Withdrawl of Civil Suit Construing it as a Notice of Voluntary Dismissal Pursuant to FED.R.CIV.P.41(a)(1), Signed by District Judge Marilyn L. Huff on 2/19/2009. CASE CLOSED. (Arellano, S.)

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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 I. PROCEDURAL HISTORY On July 22, 2008, Plaintiff, an inmate currently incarcerated at Pelican Bay State Prison located in Crescent City, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. 1915(a) [Doc. No. 2]. The Court granted Plaintiff's Motion to Proceed IFP on July 24, 2008 [Doc. No. 6]. K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1047-Voluntary Dismissal UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DUANE PAUL, CDCR #E-01335, Civil No. 08-1047 MLH (RBB) Plaintiff, vs. JOHN/JANE DOE, et al., Defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR VOLUNTARY WITHDRAWAL OF CIVIL SUIT CONSTRUING IT AS A NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO FED.R.CIV.P. 41(a)(1) [Doc. No. 12] -1- 08cv1047 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 On November 25, 2008, this matter was reassigned to District Judge Marilyn L. Huff for all further proceedings [Doc. No. 9]. The Court sua sponte dismissed Plaintiff's Complaint for failing to state a claim on January 7, 2009. See Jan. 7, 2009 Order at 5. Nonetheless, the Court granted Plaintiff leave to file a First Amended Complaint in order to correct the deficiencies of pleading identified by the Court in its Order. Id. Instead of filing an Amended Complaint, Plaintiff filed a "Motion to Voluntary Withdrawal" [Doc. No. 12]. II. VOLUNTARY DISMISSAL PURSUANT TO FRCP 41 Rule 41(a)(1) of the Federal Rules of Civil Procedure provides that "an action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment...." Fed.R.Civ.P. 41(a)(1). "Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment..... The dismissal is effective on filing and no court order is required." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995), cert. dismissed, 116 S. Ct. 1710 (1996); see Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993). In this matter, there has been no answer or motion for summary judgment. Accordingly, the Court hereby construes Plaintiff's Request [Doc. No. 12] as a voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1) and dismisses Plaintiff's action without prejudice. III. CONCLUSION For all the foregoing reasons, the Court hereby: Construes Plaintiff's "Motion for Voluntary Withdrawal" [Doc. No. 12] as a Notice of Voluntary Dismissal pursuant to FED.R.CIV.P. 41(a)(1) and dismisses Plaintiff's action without prejudice. The Clerk shall close the file. DATED: February 19, 2009 ____________________________________ HON. MARILYN L. HUFF United States District Judge K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1047-Voluntary Dismissal -2- 08cv1047

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