Pollard v. Harrington

Filing 49

VOLUNTARY DISMISSAL of ACTION, signed by District Judge Lawrence J. O'Neill on 1/16/13. Clerk Shall Close Case - CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY EMANUEL POLLARD,

CASE No. 1:09-cv-01232-LJO-MJS (PC)

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Plaintiff,

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VOLUNTARY DISMISSAL OF ACTION
(ECF No. 48)

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v.

CLERK SHALL CLOSE CASE

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K. HARRINGTON,

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Defendant.
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Plaintiff Jerry Emanuel Pollard (“Plaintiff”) is a state prisoner proceeding pro se

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and in forma pauperis in this civil rights action filed on May 1, 2009 pursuant to 42

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U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff declined to extend magistrate judge

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jurisdiction for all purposes and proceedings. (Decline Magistrate, ECF No. 9.)

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The Complaint was dismissed for failure to state a claim, but with leave to

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amend. (Order Dismiss. Compl., ECF No. 16.) Plaintiff filed a First Amended

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Complaint on June 4, 2012. (First Am. Compl., ECF No. 21.) The First Amended

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Complaint was dismissed on August 30, 2012, for failure to state a claim, with leave to

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file a second amended complaint by not later than October 4, 2012. (Order Dismiss.

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First Am. Compl., ECF No. 41.)

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The Court extended to October 29, 2012, the time for Plaintiff to file his second

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amended complaint. (Order Grant. In Part Ext. Time, ECF No. 43.) The October 29,

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2012 deadline passed without Plaintiff having filed a second amended complaint or a

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request for an extension of time to do so. The Court issued an order that by not later

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than November 29, 2012, Plaintiff file an amended complaint or show cause why his

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case should not be dismissed for failure to comply with a court order and failure to state

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a claim. (Order Show Cause, ECF No. 44.)
The November 29, 2012 deadline passed without Plaintiff complying with or

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otherwise responding to the Court’s order. The magistrate judge assigned to this case

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filed findings and recommendations that this action be dismissed with prejudice based

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on Plaintiff’s failure to state a claim and failure to obey the Court’s order. (F&R for

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Dismissal, ECF No. 45.) The parties were advised that any objection to the findings

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and recommendations was due by January 7, 2013. (Id. at 3:16-17.) Plaintiff filed, on

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January 2, 2013, an affidavit requesting extension of time to file objections to the

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findings and recommendations. (Aff. Ext. Time for Obj., ECF No. 46.) The Court

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granted Plaintiff a further extension of time through February 11, 2013 to file his

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objections to the findings and recommendations for dismissal. (Order Ext. Time., ECF

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No. 47.)
On January 14, 2013, Plaintiff filed a motion with the Court asking that his case

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be voluntarily dismissed. (Mot. Vol. Dismiss., ECF No. 48.)
Under Fed. R. Civ. P. 41(a)(1)(A), a plaintiff may dismiss an action without a

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court order by filing a notice of dismissal. Plaintiff’s motion requesting dismissal of his

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case is read as a notice of dismissal.

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Accordingly, pursuant to Fed. R. Civ. P. 41, this action is hereby DISMISSED

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without prejudice.
The Clerk shall CLOSE this case.

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IT IS SO ORDERED.

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Dated:

January 16, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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