Kirk v. Felker et al

Filing 61

ORDER DISMISSING CASE CASE w/ prejudice signed by Circuit Judge Sidney Thomas on 07/27/11 pursuant to plf's 59 Voluntary Motion to Dismiss. CASE CLOSED (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MICHAEL KIRK,

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No. 2:08-cv-02249-SRT

Plaintiff,
ORDER

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vs.

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T. FELKER, et al.,

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Defendants.

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________________________________/

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Plaintiff, prisoner at High Desert State Prison proceeding in forma pauperis, filed

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his complaint pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment violation by

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defendants Warden Felker, Chief of Inmate Appeals Grannis, Doctor David, and Doctor James.1

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Defendant David was dismissed for lack of jurisdiction. On May 18, 2010, the Court dismissed

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plaintiff’s claims against Felker and Grannis and granted plaintiff leave to amend to cure the

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pleading deficiencies as to Felker and Grannis. Although Plaintiff had not been granted a general

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leave to amend, on December 10, 2010, Plaintiff filed an amended complaint naming new parties

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and alleging new causes of action. On June 17, 2011, this Court issued an order striking the

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amended complaint because it did not cure the pleading deficiencies of the original complaint

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and, instead, named new parties and alleged new causes of action.

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On January 18, 2011, the remaining Defendant filed a motion for summary judgment.

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The Plaintiff did not file an opposition to the motion. In its June 17, 2011 order, the Court noted

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this fact, and granted Plaintiff twenty-one (21) days to file an opposition. The Plaintiff did not do

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so, but instead filed a motion to dismiss the complaint without prejudice. Defendants did not

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object to dismissal, so long as it was with prejudice. In the alternative, Defendants requested a

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ruling on their motion for summary judgment.

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Given the Plaintiff's decision not to contest the motion for summary judgment and

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Plaintiff's subsequent motion to dismiss his claims voluntarily, the Court hereby DISMISSES the

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action with prejudice. All other pending motions are denied as moot. Each party shall bear its

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own costs.

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DATED: July 27, 2011

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__/s/ Sidney R. Thomas____________________

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Sidney R. Thomas, United States Circuit Judge

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Sitting By Designation

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