Hackett v. Fisher et al

Filing 51

ORDER Directing Parties to Meet and Confer and Directing Defendant to Respond to Plaintiff's Motion to Abandon All Claims 50 , signed by Magistrate Judge Barbara A. McAuliffe on 9/4/2018: Defendant's Response Due September 14, 2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEPHEN HACKETT,

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Plaintiff,

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ORDER DIRECTING PARTIES TO MEET
AND CONFER AND DIRECTING
DEFENDANT TO RESPOND TO
PLAINTIFF’S MOTION TO ABANDON ALL
CLAIMS

Defendant.

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Case No. 1:15-cv-00670-DAD-BAM (PC)

(ECF No. 50)

v.
TOOR,

Defendant’s Response Due: September 14,
2018

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Plaintiff Stephen Hackett (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Toor with

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respect to Plaintiff’s claim for deliberate indifference in violation of the Eighth Amendment

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regarding conducting in May–June 2016.

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On October 23, 2017, Defendant Toor filed a motion for summary judgment pursuant to

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Federal Rule of Civil Procedure 56, on the grounds that the undisputed facts prove that Plaintiff

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failed to timely and properly exhaust his available administrative remedies. (ECF No. 36.) On

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August 13, 2016, the Court issued findings and recommendations recommending that

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Defendant’s motion be granted. (ECF No. 49.) The parties were directed to file any written

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objections within fourteen (14) days after service. (Id. at 7.)

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Currently before the Court is Plaintiff’s Motion to Abandon All Claims for Relief, filed

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August 29, 2018. (ECF No. 50.) Plaintiff requests that the Court dismiss “the Third Claim for
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Relief and allow abandonment of claims.” (Id.)
Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “a plaintiff has an

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absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a

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motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193

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F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

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1997)). Here, Defendants have filed a motion for summary judgment, so Plaintiff cannot

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voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)(i).

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Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an
action without a court order by filing a stipulation of dismissal signed by all parties who have

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appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing a

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stipulation of dismissal that is signed by all parties who have appeared.

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A party may also dismiss an action by filing a motion requesting the Court to dismiss the

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action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is

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addressed to the sound discretion of the district court. Hamilton v. Fireston Tire & Rubber Co.

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Inc., 679 F.2d 143, 145 (9th Cir. 1982).

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Here, it is unclear whether Plaintiff intended to file a motion for voluntary dismissal of the

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entire action, or merely part of the action. The Court notes that, at this time, Defendant Toor is

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the only remaining defendant, and only the claim of deliberate indifference regarding conduct in

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May–June 2016 remains. It is unclear what cause of action Plaintiff is referring to when he states

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that he seeks dismissal of the “Third Claim for Relief.” Furthermore, it is unclear whether the

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requested dismissal is with or without prejudice. Therefore, the Court finds it appropriate to

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require the parties to meet and confer regarding Plaintiff’s filing. The Court’s findings and

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recommendations, as well as the deadline for filing objections, remain pending.

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Accordingly, it is HEREBY ORDERED as follows:
1. The parties SHALL meet and confer regarding Plaintiff’s motion to abandon all claims for
relief, (ECF No. 50);

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2. Prior to the meet and confer, Defendant is DIRECTED to serve a courtesy copy of this

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order on Plaintiff via the Litigation Coordinator at the institution where he is currently
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housed;
3. On or before Friday, September 14, 2018, Defendant is DIRECTED to file:

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a. A response to Plaintiff’s motion; or

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a. A stipulation to dismiss this action pursuant to Federal Rule of Civil Procedure

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41(a)(1)(A)(ii), specifying whether the dismissal pertains to all or only part of this

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action, and whether the dismissal is with or without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 4, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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