Perez v. Beard et al

Filing 14

ORDER Vacating Order to Show Cause and Dismissing this Action signed by Magistrate Judge Michael J. Seng on 08/05/2015. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMAS PEREZ,

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CASE NO. 1:14-cv-01723-MJS (PC)
Plaintiff,

ORDER VACATING ORDER TO SHOW
CAUSE AND DISMISSING THIS ACTION

v.
(ECF Nos. 11, 12)
JEFFREY BEARD, et al.,
CLERK TO CLOSE CASE
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.

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On June 8, 2015, the Court screened plaintiff’s First Amended Complaint,

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dismissing plaintiff’s federal claims for failure to state a claim and dismissing his

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supplemental state law negligence claim for failure to demonstrate compliance with the

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California Tort Claims Act (“CTCA”). Plaintiff was directed to file a Second Amended

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Complaint in accordance with the Court’s order on or before July 8, 2015. Plaintiff,

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however, did not file a Second Amended Complaint. Accordingly, on July 21, 2015,

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plaintiff was directed to show cause why this action should not be dismissed with

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prejudice for failure to state a claim, failure to obey a court order, and failure to

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prosecute. (ECF No. 11.) Plaintiff has now filed both a response to the Order to Show

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Cause and a motion to dismiss this action without prejudice. (ECF Nos. 12, 13.)

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In his August 3, 2015 response to the Order to Show Cause and in his motion to

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dismiss, plaintiff moves for dismissal without prejudice on the ground that he intends to

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file a claim in compliance with the CTCA before refiling this action.

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Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may dismiss an

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

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serves either an answer or a motion for summary judgment. Because plaintiff’s response

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and motion to dismiss are sufficient under Rule 41, plaintiff’s motion will be granted and

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this action will be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s August 3, 2015 motion to dismiss is GRANTED (ECF No. 12);

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2. The July 21, 2015 Order to Show Cause is VACATED (ECF No. 11);

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3. This action is hereby DISMISSED without prejudice; and

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4. The Clerk shall CLOSE this case.

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IT IS SO ORDERED.
Dated:

August 5, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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