Brim v. Schlaerth et al

Filing 12

ORDER Directing Clerk of Court to Close Case signed by Magistrate Judge Erica P. Grosjean on 11/7/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Case No. 1:17-CV-00797-AWI-EPG EURIE BRIM, III, Plaintiff, v. ORDER DIRECTING THE CLERK OF THE COURT TO CLOSE CASE (ECF No. 11) WILLIAM J. SCHLAERTH, et al., Defendants. 14 15 16 17 Eurie Brim, III (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action 19 on June 12, 2017. (ECF No. 1). Plaintiff alleges that William J. Schlaerth, a Kern County 20 District Attorney, violated his constitutional rights by committing perjury and using testimony 21 and evidence he knew to be false. Sean Mountjoy, a Kern County Sheriff Officer, violated his 22 rights by knowingly and willfully committing perjury, falsifying police reports, and willfully 23 introducing evidence from an unrelated criminal case. 24 On October 23, 2017, the Court screened the Complaint, and found that it fails to state a 25 cognizable claim against any defendant. (ECF No. 9.) Specifically, the Court found that Plaintiff 26 improperly seeks to collaterally attack his criminal conviction through a § 1983 action. Id. The 27 Court directed Plaintiff to either (1) file a first amended complaint or (2) notify the Court that he 28 wishes to stand on his Complaint, subject to findings and recommendations to the district judge 1 1 2 consistent with the October 23, 2017 Order. Id. On November 2, 2017, Plaintiff filed a notice stating that he would like to stand on his 3 complaint, and at the same time was unaware he must wait for resolution of all the issues 4 concerning his challenge to his criminal conviction before filing a § 1983 action. (ECF No. 11.) 5 Plaintiff requests that the Court dismiss this action without prejudice. Id. 6 Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff may dismiss his action without a court 7 order. Thus, this action is dismissed without prejudice. See Wilson v. City of San Jose, 111 F.3d 8 688, 692 (9th Cir. 1997); Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). Accordingly, 9 the Clerk of the Court is DIRECTED to close this case. 10 IT IS SO ORDERED. 11 12 Dated: November 7, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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