Furnace v. Cope et al

Filing 72

ORDER GRANTING Plaintiff's Unopposed 68 Request for Voluntary Dismissal of Action without Prejudice; ORDER Vacating 66 Writ of Habeas Corpus Ad Testificandum Directing Production of Inmate Edward Furnace CDCR #H-33245 signed by Magistrate Judge Barbara A. McAuliffe on 11/03/2021. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD FURNACE, Plaintiff, 14 15 ORDER GRANTING PLAINTIFF’S UNOPPOSED REQUEST FOR VOLUNTARY DISMISSAL OF ACTION WITHOUT PREJUDICE (ECF No. 68) Defendant. 12 13 Case No. 1:16-cv-00420-NONE-BAM (PC) ORDER VACATING WRIT OF HABEAS CORPUS AD TESTIFICANDUM DIRECTING PRODUCTION OF INMATE EDWARD FURNACE, CDCR #H-33245 (ECF No. 66) v. VILLA, 16 17 18 19 Plaintiff Edward Furnace (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 21 second amended complaint against Defendant Villa for excessive force in violation of the Eighth 22 Amendment. This action is currently set for a telephonic status conference on November 10, 23 2021 to discuss setting the relevant deadlines and a possible trial date. (ECF No. 65.) 24 On October 25, 2021, Plaintiff filed a “Motion to Dismiss Action,” stipulating to dismissal 25 of this action pursuant to Fed. R. Civ. P. 41(a)(1). (ECF No. 68.) The Court construed Plaintiff’s 26 motion as a motion to dismiss pursuant to Rule 41(a)(2) and directed Defendant to file a response. 27 (ECF No. 69.) On November 2, 2021, Defendant filed a statement of non-opposition to 28 Plaintiff’s motion to dismiss case. (ECF No. 71.) 1 1 Pursuant to Federal Rule of Civil Procedure 41(a)(2), and in light of Defendant’s 2 statement of non-opposition, the Court finds the terms of the dismissal proper. As the parties 3 have not specified whether the dismissal is with or without prejudice, the Court finds that a 4 dismissal without prejudice is appropriate. Fed. R. Civ. P. 41(a)(2). 5 Accordingly, IT IS HEREBY ORDERED as follows: 6 1. Plaintiff’s motion to dismiss action, (ECF No. 68), is GRANTED; 7 2. This action is dismissed without prejudice; 8 3. The writ of habeas corpus ad testificandum directing the production of Edward Furnace, 9 10 CDCR #H-33245, issued on October 12, 2021, (ECF No. 66) is VACATED; and 4. The Clerk of the Court is directed to: 11 a. Serve a courtesy copy of this order by e-mail on the Litigation Coordinator at 12 Pelican Bay State Prison, and on the Litigation Coordinator of any other 13 institution(s) which require this information; 14 b. Terminate all pending motions, hearings, and deadlines; 15 c. Assign a District Judge to this case for the purpose of closing the case; and 16 d. Close this case. 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara November 3, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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