Tony Hernandez v. Gipson et al

Filing 13

FINDINGS and RECOMMENDATION that Plaintiff's Request for Voluntary Dismissal be Granted 11 , signed by Magistrate Judge Barbara A. McAuliffe on 4/5/16. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY HERNANDEZ,

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Plaintiff,
v.
C. GIPSON, et al.,
Defendants.

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1:14-cv-001270-AWI-BAM-PC
FINDINGS AND RECOMMENDATION
THAT PLAINTIFF’S REQUEST FOR
VOLUNTARY DISMISSAL BE GRANTED
(ECF No. 11)
OBJECTIONS DUE IN FOURTEEN DAYS

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Plaintiff Tony Hernandez is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action. This matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 3, 2016, an order was entered, dismissing the complaint for failure to state a

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claim and granting Plaintiff leave to file an amended complaint. (ECF No. 10.) On February 22,

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2016, Plaintiff filed a document titled as a “notice of motion and motion dismissing-revoking

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complaint in its entirety.” (ECF No. 11). The Notice states Plaintiff’s desire to “revoke my

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complaint entirely as there can be no redress within the United States Courts and there is no

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justice within the federal district courts.” (Id. P.4, 18:-20.) Following Plaintiff’s Notice to

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dismiss, this Court, on February 24, 2016, entered an order advising Plaintiff that he could cure

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the deficiencies in the complaint identified by the February 3, 2016, screening order. The Court

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granted Plaintiff thirty days in which to either file an amended complaint or a notice of voluntary

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dismissal. Plaintiff was specifically advised that if he failed to file an amended complaint or
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notice of voluntary dismissal, a recommendation of dismissal would be entered, recommending

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that this action be dismissed, without prejudice, on Plaintiff’s motion.

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“[U]nder Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss his

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action prior to service by the defendant of an answer or a motion for summary judgment.”

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Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999)

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(quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no

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court order is required, the parties are left as though no action had been brought, the defendant

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can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. In

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this action, no defendant has been served and no defendant has filed an answer or motion for

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summary judgment. Plaintiff has not filed an amended complaint, notice of dismissal, or any

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other response to the February 24, 2016, order. No Defendant has been served, and no

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Defendant has entered an appearance in this action.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a), and the docket be adjusted to reflect

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voluntary dismissal of this action without prejudice pursuant to Rule 41(a).

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These findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provision of Title 28 U.S.C. § 636(b)(1)(B). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections to

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Findings and Recommendations.” The parties are advised that failure to file objections within

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the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d

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F.3d 834, 838-39 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 5, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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