(PC) Mills v. Jones et al

Filing 167

ORDER DENYING 164 165 Motions without Prejudice in Light of Rule 41(a)(2) Pending Motion; ORDER Directing Clerk to Strike 166 Lodged Amended Complaint signed by Magistrate Judge Helena M. Barch-Kuchta on 01/19/2023. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, 12 Plaintiff, 13 v. 14 Z. JONES, et al., 15 Case No. 1:21-cv-01193-ADA-HBK (PC) ORDER DENYING MOTIONS WITHOUT PREJUDICE IN LIGHT OF RULE 41(a)(2) PENDING MOTION ORDER DIRECTING CLERK TO STRIKE LODGED AMENDED COMPLAINT Defendants. (Doc. Nos. 164, 165, 166) 16 17 18 19 20 On January 17, 2023, Plaintiff filed a motion to compel discovery and motion to enter 21 letter from Attorney General’s Office. (Doc. No. 164-65). Plaintiff also lodged a proposed 22 amended complaint on the same date. (Doc. No. 166). On November 22, 2022, Plaintiff filed a 23 motion stating he wishes to dismiss the entire action without prejudice. (Doc. No. 159, emphasis 24 added), which the Court construed as a motion for voluntary dismissal pursuant to Fed. R. Civ. P. 25 41(a)(2). (Doc. No. 162 at 2).1 On December 1, 2022, Defendants filed a non-opposition to the 26 27 28 1 Defendants filed a motion for summary judgment noting Plaintiff had initiated the action before exhausting his administrative remedies. (Doc. No. 151). Presumably, Plaintiff acknowledging he prematurely filed the action, sought a dismissal without prejudice so he may file a new action after he fully exhausted his administrative remedies. 1 Rule 41(a)(2) motion. (Doc. No. 163). Due to Plaintiff’s withdrawal of consent (Doc. No. 160, 2 162), Plaintiff’s Rule 41(a)(2) motion (Doc. No. 159) remains pending before the district court. 3 Plaintiff’s filings of the instant motions are unclear considering his pending motion to 4 voluntarily dismiss this case. Thus, the Court will deny Plaintiff’s motions without prejudice 5 pending the district court’s ruling on Plaintiff’s pending Rule 41(b) motion to dismiss. If the 6 district court denies Plaintiffs’ Rule 41(a)(2) motion, Plaintiff may refile the motions, if 7 appropriate. Further, the undersigned has previously issued a Report and Recommendation to 8 deny Plaintiff’s previous motion to file a second amended complaint (Doc. No. 154). Again, 9 should the district court deny the Rule 41(a)(2) motion, the district court will first have to rule on 10 Plaintiff’s previous motion to file a second amended complaint before Plaintiff may lodge a new 11 complaint. Thus, the Court will direct the Clerk to strike the lodged amended complaint. 12 ACCORDINGLY, it is ORDERED: 13 1. Plaintiff’s motion to compel discovery (Doc. No. 164) and motion to enter letter from Attorney General’s Office (Doc. No. 165) are DENIED without prejudice. 14 2. The Clerk of Court shall strike Plaintiff’s lodged amended complaint (Doc. No. 166). 15 16 17 18 Dated: January 19, 2023 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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