Heilman v. Fry et al

Filing 11

ORDER signed by Senior Judge Justin L. Quackenbush on 10/23/09 ORDERING plaintiff's motion 10 is GRANTED and the complaint 1 is DISMISSED WITHOUT PREJUDICE. The District Court Executive is directed to enter this order, enter judgment of dismissal of the complaint and the claims therein without prejudice, forward a copy to plaintiff and close the file. CASE CLOSED. (Becknal, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 1 On October 16, 2009, Plaintiff filed a Request to Withdraw/Dismiss Complaint (Ct. Rec. 10). Plaintiff therein acknowledges having reviewed the court's screening order, which identified the claims which were not viable because of the ongoing Coleman litigation and the claims which might have been cured by amendment. Plaintiff's request to withdraw, however, states that because his "claims centered on the arguments identical to the Coleman claims, Plaintiff does not believe he can cure the pleading defects and requests the court withdraw/dismiss the complaint. Plaintiff does not seek to file an amended complaint." Ct rec. 10 (emphasis added). Pursuant to Rule 41 of the Federal Rules of Civil Procedure, plaintiff is entitled to dismiss this action voluntarily "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Fed.R.Civ.P. 41(a)(1)(i). Defendants have not been served in this action. Accordingly, IT IS ORDERED Plaintiff's Motion (Ct. Rec. 10) is IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION THOMAS JOHN HEILMAN, Plaintiff, v. N. FRY, et al., Defendants. NO. CV-08-2478-JLQ ORDER OF DISMISSAL

1 GRANTED and the Complaint (Ct. Rec. 1) should be DISMISSED WITHOUT 2 PREJUDICE. 3 IT IS SO ORDERED. The District Court Executive is directed to enter 4 this Order, enter judgment of dismissal of the Complaint and the claims therein without 5 prejudice, forward a copy to Plaintiff, and close the file. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 2 DATED this 23rd day of October 2009. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE