Naylor v. Allenby et al

Filing 45

ORDER DIRECTING Defendant Duvall to Respond to Plaintiff's 44 Notice of Voluntary Dismissal, signed by Magistrate Judge Michael J. Seng on 12/3/2015.(14-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROY MITCHELL NAYLOR,

CASE NO. 1: 11-cv-01649-LJO-MJS (PC)

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Plaintiff,

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v.
CLIFF ALLENBY, et al.,
Defendants.

ORDER
DIRECTING
DEFENDANT
DUVALL TO RESPOND TO PLAINTIFF’S
NOTICE OF VOLUNTARY DISMISSAL
(ECF NO. 44)
FOURTEEN (14) DAY DEADLINE

Plaintiff is a civil detainee who is being held at Coalinga State Hospital. He is
proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §
1983. (ECF Nos. 1 & 5.)
On November 2, 2015, Plaintiff filed a notice of voluntary dismissal. (ECF No.

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44.) It appears from Plaintiff’s motion that he seeks dismissal with prejudice. Plaintiff

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states that he “realizes that the subject matter can never be re-opened and forfeits any

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future legal action in this matter.” (ECF No. 44 at 2.)
Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to dismiss an action

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without a court order by filing “a notice of dismissal before the opposing party serves

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either an answer or a motion for summary judgment” or by filing “a stipulation of

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dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(i)-(ii).

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The Court may also dismiss an action under Federal Rule of Civil Procedure 41(a)(2) at
a plaintiff’s request. Unless otherwise indicated, the dismissal would be without

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prejudice.
Here, Defendant Duvall has appeared in the action. (ECF Nos. 11, 30.) The
parties have litigated a motion to dismiss, and Defendant Duvall has filed an answer to
Plaintiff’s Complaint. (ECF Nos. 12, 19, 23, 29, 30.) Plaintiff’s notice does not contain a
stipulation of dismissal by both parties, and Defendant Duvall has not filed a response to
Plaintiff’s notice of voluntary dismissal.
Accordingly, it is HEREBY ORDERED that:

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Defendant Duvall shall respond within fourteen days of service of this order to

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Plaintiff’s notice of voluntary dismissal and state whether he opposes

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dismissal of the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(a)(2).

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IT IS SO ORDERED.

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Dated:

December 3, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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