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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRISTAIN CROWDER,

Case No. 1:16-cv-00851-DAD-MJS (PC)

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Plaintiff,
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v.

FINDINGS AND RECOMMENDATION
TO DISMISS ACTION WITHOUT
PREJUDICE AT PLAINTIFF’S REQUEST

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A. CASTILLO, et al.,

(ECF NO. 35)

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Defendants.
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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.
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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
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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

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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)).

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Dated:

September 23, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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