Thomas v. Betti et al

Filing 15

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 8/10/10 recommending that this case be dismissed (Docket No 8 ) without prejudice. Referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, M)

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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 vs. L. BETTI, et al., Defendants. / Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. 1983. Plaintiff originally filed this action in state court, and the defendants removed it to this court pursuant to 28 U.S.C. 1441(b). Defendants then filed a motion to dismiss, arguing that plaintiff had failed to exhaust administrative remedies prior to filing suit and, further, that the suit is duplicative of an action filed in this court. See Docket No. 8. Plaintiff initially did not respond to the motion to dismiss. On June 22, 2010, the court ordered him to file an opposition to the motion or a statement of non-opposition within thirty days. See Docket No. 11. Plaintiff complied by filing a statement of non-opposition, informing the court that he does not object to dismissal of this action "because it has now been re-filed in this court under case number 2:10cv-1300 KJM (PC)." Docket No. 13. ///// 1 ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA EDWARD THOMAS, Plaintiff, No. CIV S-09-0871 KJM P 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 4 thom0971.57 The court construes plaintiff's statement of non-opposition as a request for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). The court will therefore recommend this action be dismissed without prejudice. In so recommending, the court expresses no finding or opinion on the substantive or procedural merit of the case docketed as Case Number CIV S-10-1300 KJM. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign this case to a district judge. IT IS HEREBY RECOMMENDED that this case be dismissed (Docket No. 8) without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(l). Within twentyone days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: August 10, 2010. 2

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