Arana v. Frazier

Filing 21

ORDER DIRECTING Plaintiff to File Notice Clarifying his Intent; Fourteen (14) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 9/19/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAURICIO ARANA,

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Plaintiff,

Case No. 1:17-cv-01702-DAD-BAM (PC)
ORDER DIRECTING PLAINTIFF TO FILE
NOTICE CLARIFYING HIS INTENT

v.
(ECF No. 20)
FRAZIER,
FOURTEEN (14) DAY DEADLINE
Defendant.

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Plaintiff Mauricio Arana (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On June 12, 2018, the Court directed Plaintiff to file a second amended complaint as a

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single document in this action. (ECF No. 16.) On July 10, 2018, the Court granted in part

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Plaintiff’s motion for an extension of time. (ECF No. 18.)

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On August 24, 2018, Plaintiff’s second amended complaint was mistakenly used to open a

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new action, Arana v. Frazier, et al., Case No. 1:18-cv-01147-BAM (PC). Realizing the error, the

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Court ordered the Clerk of the Court to close Case No. 1:18-cv-01147-BAM (PC). (Case No.

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1:18-cv-01147-BAM (PC), Doc. No. 4.) Plaintiff’s second amended complaint was then

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correctly filed under the instant action. (ECF No. 19.)

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Currently before the Court is Plaintiff’s Motion for Dismissal, filed September 17, 2018.
(ECF No. 20.) Plaintiff states that he would like the Court to dismiss Case No. 1:18-cv-011471

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BAM (PC). (Id.)
Although Plaintiff refers to Case No. 1:18-cv-01147-BAM (PC) in his motion, that action

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has already been closed, and therefore the document was filed in the instant case. Based on the

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motion, it is unclear to the Court whether Plaintiff intends to voluntarily dismiss this action,

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without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), or whether Plaintiff

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is mistakenly trying to close Case No. 1:18-cv-01147-BAM (PC), which is already closed. The

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Court notes that the instant case alleges violations of Plaintiff’s civil rights based on a June 5,

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2017 incident involving the use of excessive force by Defendant Frazier and a July 27, 2017 due

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process violation by Defendant Hurlbut, Nouwels, and Hodges during his rule violation hearing.

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(ECF No. 19.)
Accordingly, within fourteen (14) days from the date of service of this order, Plaintiff

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shall clarify, in writing, whether he intends to voluntarily dismiss this action, Case No. 1:17-cv-

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01702-DAD-BAM (PC), pursuant to Rule 41, or whether he is attempting to dismiss Case No.

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1:18-cv-01147-BAM (PC), which is already closed. Plaintiff’s failure to respond to the

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Court’s order will result in dismissal of this action for failure to obey a court order and

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failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 19, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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