Gary v. Kincaid et al

Filing 26

ORDER Regarding Plaintiff's Notice of Voluntary Dismissal, signed by Magistrate Judge Barbara A. McAuliffe on 6/30/19. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REGINALD A. GARY,

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Plaintiff,

Case No. 1:18-cv-00612-LJO-BAM (PC)
ORDER REGARDING PLAINTIFF’S
NOTICE OF VOLUNTARY DISMISSAL

v.
(ECF No. 25)
NANCY KINCAID, et al.,
Defendants.

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Plaintiff Reginald A. Gary (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action. Individuals detained under California Welfare Institutions

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Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison

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Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000).

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On May 10, 2019, the Court granted Plaintiff leave to file a first amended complaint or a

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notice of voluntary dismissal. (ECF No. 22.) Plaintiff was expressly warned that if he failed to

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file an amended complaint in compliance with the Court’s order, this action would be dismissed

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for failure to state a claim and failure to obey a court order. (Id. at 6.) The deadline for Plaintiff

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to file a first amended complaint expired on June 12, 2019.

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On June 26, 2019, Plaintiff filed the instant notice of voluntary dismissal. (ECF No. 25.)

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Plaintiff states that he attempted to file a dismissal of this case on June 1, 2019, which the Court

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did not receive. (Id.)
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“[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action

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prior to service by the defendant of an answer or a motion for summary judgment.” Commercial

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Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and

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citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is

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required, the parties are left as though no action had been brought, the defendant can’t complain,

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and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has

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been served in this action and no defendant has filed an answer or motion for summary

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judgment.

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Accordingly, this action is terminated by operation of law without further order from the

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Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to terminate all pending

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motions and deadlines, and close this case.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

June 30, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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