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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TOMAS PEREZ, 11 12 13 14 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. 15 16 17 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. 18 On June 8, 2015, the Court screened plaintiff’s First Amended Complaint, 19 dismissing plaintiff’s federal claims for failure to state a claim and dismissing his 20 supplemental state law negligence claim for failure to demonstrate compliance with the 21 California Tort Claims Act (“CTCA”). Plaintiff was directed to file a Second Amended 22 Complaint in accordance with the Court’s order on or before July 8, 2015. Plaintiff, 23 however, did not file a Second Amended Complaint. Accordingly, on July 21, 2015, 24 plaintiff was directed to show cause why this action should not be dismissed with 25 prejudice for failure to state a claim, failure to obey a court order, and failure to 26 prosecute. (ECF No. 11.) Plaintiff has now filed both a response to the Order to Show 27 Cause and a motion to dismiss this action without prejudice. (ECF Nos. 12, 13.) 28 1 In his August 3, 2015 response to the Order to Show Cause and in his motion to 2 dismiss, plaintiff moves for dismissal without prejudice on the ground that he intends to 3 file a claim in compliance with the CTCA before refiling this action. 4 Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may dismiss an 5 action without a court order by filing a notice of dismissal before the opposing party 6 serves either an answer or a motion for summary judgment. Because plaintiff’s response 7 and motion to dismiss are sufficient under Rule 41, plaintiff’s motion will be granted and 8 this action will be dismissed. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s August 3, 2015 motion to dismiss is GRANTED (ECF No. 12); 11 2. The July 21, 2015 Order to Show Cause is VACATED (ECF No. 11); 12 3. This action is hereby DISMISSED without prejudice; and 13 4. The Clerk shall CLOSE this case. 14 15 16 IT IS SO ORDERED. Dated: August 5, 2015 /s/ 17 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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