Crowder v. Castillo et al

Filing 37

FINDINGS and RECOMMENDATIONS recommending that the Action be DISMISSED Without Prejudice at Plaintiff's Request Pursuant to Federal Rule of Civil Procedure 41(a)(2) re 12 Amended Prisoner Civil Rights Complaint, 35 Motion signed by Magistrate Judge Michael J. Seng on 9/23/2017. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 TRISTAIN CROWDER, Case No. 1:16-cv-00851-DAD-MJS (PC) 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE AT PLAINTIFF’S REQUEST 13 A. CASTILLO, et al., (ECF NO. 35) 14 Defendants. 15 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s 19 Eighth Amendment claims against defendants Castillo, Gonzalez, Ibarra and Diaz. 20 On July 10, 2017, Defendants filed a motion for summary judgment on the 21 ground Plaintiff failed to exhaust administrative remedies. (ECF No. 31.) Plaintiff did not 22 respond to that motion, but instead, on September 1, 2017, filed a request to “withdraw” 23 his first amended complaint. (ECF No. 35.) He states therein that he does not wish to 24 pursue the matter further due to his lack of legal knowledge and inability to procure 25 counsel. Defendants did not respond to this submission and the time for doing so has 26 passed. 27 A plaintiff may voluntarily dismiss an action without a court order by either 28 (1) filing a notice of dismissal before the opposing party serves either an answer or a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 motion for summary judgment; or (2) filing a stipulation of dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1)(A). Neither circumstance is applicable here. Accordingly, this action may be dismissed at Plaintiff’s request only by court order, on terms that the court considers proper. Fed. R. Civ. P. 41(a)(2). Here, the Court concludes dismissal without prejudice is proper. Defendants have not objected to the request, nor would they have any apparent basis to do so. They have filed a motion for summary judgment on exhaustion grounds. If they prevail on that motion, the action would be dismissed without prejudice. See Mckinney v. Carey, 311 F.3d 1198, 1200–1201 (9th Cir.2002). The same result is achieved by granting Plaintiff’s request. Accordingly, it is HEREBY RECOMMENDED that the action be dismissed without prejudice at Plaintiff’s request pursuant to Federal Rule of Civil Procedure 41(a)(2). The findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 IT IS SO ORDERED. 26 27 Dated: September 23, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?