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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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.

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Eurie Brim, III (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action

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on June 12, 2017. (ECF No. 1). Plaintiff alleges that William J. Schlaerth, a Kern County

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District Attorney, violated his constitutional rights by committing perjury and using testimony

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and evidence he knew to be false. Sean Mountjoy, a Kern County Sheriff Officer, violated his

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rights by knowingly and willfully committing perjury, falsifying police reports, and willfully

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introducing evidence from an unrelated criminal case.

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On October 23, 2017, the Court screened the Complaint, and found that it fails to state a

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cognizable claim against any defendant. (ECF No. 9.) Specifically, the Court found that Plaintiff

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improperly seeks to collaterally attack his criminal conviction through a § 1983 action. Id. The

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Court directed Plaintiff to either (1) file a first amended complaint or (2) notify the Court that he

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wishes to stand on his Complaint, subject to findings and recommendations to the district judge
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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

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complaint, and at the same time was unaware he must wait for resolution of all the issues

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concerning his challenge to his criminal conviction before filing a § 1983 action. (ECF No. 11.)

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Plaintiff requests that the Court dismiss this action without prejudice. Id.

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Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff may dismiss his action without a court

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order. Thus, this action is dismissed without prejudice. See Wilson v. City of San Jose, 111 F.3d

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688, 692 (9th Cir. 1997); Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). Accordingly,

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the Clerk of the Court is DIRECTED to close this case.

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IT IS SO ORDERED.

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Dated:

November 7, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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