(PC) Kidwell v. Collins, et al

Filing 34

ORDER Regarding Plaintiff's Filing of January 8, 2024 and DIRECTING Defendant's Response signed by Magistrate Judge Christopher D. Baker on 1/10/2024. Seven (7) Day Deadline. (Xiong, J.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

SEQUOYAH DESERTHAWK
KIDWELL,
Plaintiff,

13
v.

14
15

Case No.: 1:22-cv-00709-JLT-CDB (PC)
ORDER REGARDING PLAINTIFF’S
FILING OF JANUARY 8, 2024 AND
DIRECTING DEFENDANT’S RESPONSE
(Doc. 33)

JASON COLLINS, et al.,

SEVEN (7) DAY DEADLINE

Defendants.

16
17

Plaintiff Sequoyah Deserthawk Kidwell, also known as Jason Scott Harper, is proceeding

18
19

pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds against

20

Defendant Aguwa for retaliation in violation of the First Amendment.
On December 26, 2023, Defendant filed an answer to Plaintiff’s first amended complaint.

21
22

(Doc. 31.)
On January 8, 2024, Plaintiff filed a document titled “Plaintiffs Response to Answer

23
24

Plainti[ff] Conce[des] and Request Dismissal of Complaint.” (Doc. 33.)

25

DISCUSSION AND ORDER

26

The Court construes Plaintiff’s filing to be a motion for voluntary dismissal pursuant to

27

Rule 41(a)(2) of the Federal Rules of Civil Procedure.

28

//

Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “‘a plaintiff has an

1
2

absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a

3

motion for summary judgment.’” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193

4

F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

5

1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action

6

pursuant to Rule 41(a)(1)(A)(i). Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a

7

“plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed

8

by all parties who have appeared.” Therefore, Plaintiff may dismiss this action by filing a

9

stipulation of dismissal that is signed by all parties who have appeared. However, the motion filed

10

by Plaintiff includes only Plaintiff’s signature.

11

A party may also dismiss an action by filing a motion requesting the Court to dismiss the

12

action. Fed. R. Civ. P. 41(a)(2). That rule provides, in relevant part, that “an action may be

13

dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”

14

Id. A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of

15

the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir.

16

1982).

17

As noted above, the Court finds that Plaintiff is attempting to file a motion to dismiss this

18

action pursuant to Rule 41(a)(2). Therefore, Defendant will be directed to file an opposition or

19

statement of non-opposition to the motion. Alternatively, Defendant may obtain a stipulation of

20

dismissal that is signed by all parties appearing in this action.

21

Accordingly, within seven (7) days from the date of service of this order, Defendant is

22

DIRECTED to file either: (1) an opposition or statement of non-opposition to Plaintiff’s motion

23

to dismiss this action; or (2) a stipulation to dismiss this action pursuant to Federal Rule of Civil

24

Procedure 41(a)(1)(A)(ii), signed by all parties appearing in this action.

25

IT IS SO ORDERED.

26
27

Dated:

January 10, 2024

___________________

_

UNITED STATES MAGISTRATE JUDGE

28
2