Windham v. Dill et al

Filing 8

ORDER Denying Motion To Stay (Doc. 6 ), ORDER Directing Plaintiff To Notify Court Of Desire To Voluntarily Dismiss Per Federal Rule Of Civil Procedure 41 (Doc. 7 ), Response Due Within 30 Days, signed by Magistrate Judge Dennis L. Beck on 4/6/2010. (Response due by 5/10/2010)(Scrivner, E)

1 2 3 4 5 6 7 8 CHARLES WINDHAM, 9 Plaintiff, 10 v. 11 DILL, et al., 12 Defendants. 13 14 15 16 17 18 Order Plaintiff Charles Windham ("Plaintiff") is a prisoner in the custody of the California / ORDER DIRECTING PLAINTIFF TO NOTIFY COURT OF DESIRE TO VOLUNTARILY DISMISS PER FEDERAL RULE OF CIVIL PROCEDURE 41 (Doc. 7) RESPONSE DUE WITHIN 30 DAYS (Doc. 6) ORDER DENYING MOTION TO STAY CASE NO. 1:09-cv-02239-DLB PC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

19 Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this 20 civil rights action. Pending before the Court are two motions: (1) a motion to stay, filed March 21 19, 2010, and (2) a motion to dismiss the action, filed March 24, 2010. 22 I. 23 Motion to Stay Plaintiff requests a stay of the proceedings for ninety days. Plaintiff alleges he has been

24 placed in comunicado since February 10, 2010 by prison staff. Plaintiff also requests a federal 25 investigation. 26 Plaintiff's request for a stay is denied as unnecessary. The Court has yet to screen

27 Plaintiff's action. Additionally, Plaintiff has not paid the filing fee or submitted an application to 28 proceed in forma pauperis. A grant of a stay is unnecessary at this time. 1

1

As to Plaintiff's request for a federal investigation, federal courts are courts of limited

2 jurisdiction, and as a preliminary matter, the court must have before it an actual case or 3 controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665 (1983); 4 Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 5 464, 471, 102 S. Ct. 752, 757-58 (1982). If the court does not have an actual case or controversy 6 before it, it has no power to hear the matter in question. Lyons, 461 U.S. at 102. Thus, "[a] 7 federal court may issue an injunction [only] if it has personal jurisdiction over the parties and 8 subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons 9 not before the court." Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 10 1985). Plaintiff seeks injunctive relief for actions undertaken at California State Prison, Los 11 Angeles County. Plaintiff's allegations in his complaint concern actions that occurred at Kern 12 Valley State Prison in Delano, California. Even if this action proceeded against the defendants in 13 Plaintiff's complaint, the Court would not have jurisdiction over prison staff at California State 14 Prison, Los Angeles County. 15 16 II. 17 Accordingly, Plaintiff's motion for a stay, filed March 19, 2010, is DENIED. Motion To Dismiss Action On March 24, 2010, Plaintiff filed a motion to dismiss wherein he requested that this

18 Court dismiss this case and allow Plaintiff to appeal to the Ninth Circuit Court of Appeals. 19 Rule 41 of the Federal Rules of Civil Procedure (hereinafter "Rule 41") provides that a

20 Plaintiff may voluntarily dismiss an action without a court order by filing a notice of dismissal 21 before the opposing party serves either an answer or a motion for summary judgment, and that 22 unless the notice states otherwise the dismissal "is without prejudice. But if the plaintiff 23 previously dismissed any federal- or state-court action based on or including the same claim, a 24 notice of dismissal operates as an adjudication on the merits." 25 At this stage in the proceedings, Plaintiff has the absolute right to dismiss his claims,

26 without prejudice. Duke Energy Trading and Marketing, L.L.C. v. Davis, 267 F.3d 1042, 1049 27 (9th Cir. 2001). However, Plaintiff cannot appeal an order granting his request for voluntary 28 dismissal under Rule 41, because such a dismissal "is to leave the parties as though no action had 2

1 been brought." Id. (quoting Commercial Space Mgt. Co. v. Boeing Co., 193 F.3d 1074, 1077 2 (9th Cir. 1999)). Parties may appeal "final decisions of the district courts." 28 U.S.C. § 1291. 3 "A `final decision' for purposes of § 1291 is a `decision by the District Court that ends the 4 litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Duke 5 Energy, 267 F.3d at 1048 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). If 6 Plaintiff voluntarily dismisses this action, then the parties would be as if no action had been 7 brought. There will be no final decision by the District Court, and Plaintiff will not be able to 8 appeal. 9 If the Court grants Plaintiff's request to voluntarily dismiss this action under Rule 41, he

10 will not be able to appeal to the Ninth Circuit Court of Appeals as he desires to do ­ which raises 11 questions as to whether Plaintiff truly desires dismissal under Rule 41. Accordingly, within 12 thirty (30) days from the date of service of this order, Plaintiff shall notify this Court whether he 13 desires to voluntarily dismiss this action under Rule 41. If Plaintiff fails to comply with this 14 order, this action will be dismissed for failure to obey a court order. 15 16 17 3b142a 18 19 20 21 22 23 24 25 26 27 28 3 IT IS SO ORDERED. Dated:

April 6, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE