(PC) Mills v. Jones et al
Filing
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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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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THOMAS K. MILLS,
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Plaintiff,
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v.
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Z. JONES, et al.,
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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)
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On January 17, 2023, Plaintiff filed a motion to compel discovery and motion to enter
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letter from Attorney General’s Office. (Doc. No. 164-65). Plaintiff also lodged a proposed
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amended complaint on the same date. (Doc. No. 166). On November 22, 2022, Plaintiff filed a
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motion stating he wishes to dismiss the entire action without prejudice. (Doc. No. 159, emphasis
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added), which the Court construed as a motion for voluntary dismissal pursuant to Fed. R. Civ. P.
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41(a)(2). (Doc. No. 162 at 2).1 On December 1, 2022, Defendants filed a non-opposition to the
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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.
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Rule 41(a)(2) motion. (Doc. No. 163). Due to Plaintiff’s withdrawal of consent (Doc. No. 160,
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162), Plaintiff’s Rule 41(a)(2) motion (Doc. No. 159) remains pending before the district court.
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Plaintiff’s filings of the instant motions are unclear considering his pending motion to
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voluntarily dismiss this case. Thus, the Court will deny Plaintiff’s motions without prejudice
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pending the district court’s ruling on Plaintiff’s pending Rule 41(b) motion to dismiss. If the
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district court denies Plaintiffs’ Rule 41(a)(2) motion, Plaintiff may refile the motions, if
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appropriate. Further, the undersigned has previously issued a Report and Recommendation to
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deny Plaintiff’s previous motion to file a second amended complaint (Doc. No. 154). Again,
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should the district court deny the Rule 41(a)(2) motion, the district court will first have to rule on
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Plaintiff’s previous motion to file a second amended complaint before Plaintiff may lodge a new
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complaint. Thus, the Court will direct the Clerk to strike the lodged amended complaint.
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ACCORDINGLY, it is ORDERED:
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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.
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2. The Clerk of Court shall strike Plaintiff’s lodged amended complaint (Doc. No. 166).
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Dated:
January 19, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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