Cash v. Swingle et al

Filing 66

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/18/13 ORDERING that within 14 days of the date of this order, defendants may file and serve a document stipulating to dismissal of this action without prejudice.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDALL SCOTT CASH,
Plaintiff,

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vs.
DOROTHY A. SWINGLE, et al.,
Defendants.

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ORDER
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No. 2:10-cv-1082 WBS EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Plaintiff has filed a document entitled, “Plaintiff’s Declaration - Disposition of

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the Case.” Dckt. No. 65. In this filing, plaintiff states that he is unable to “meet the burden of

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proof under 42 U.S.C. § 1983,” and that “this matter, as a matter of law, should be dismissed.”

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Id. at 2. The court construes plaintiff’s filing as a notice of voluntary dismissal. Subject to

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exceptions not applicable here, a plaintiff may voluntarily dismiss an action without prejudice,

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and without a court order, by filing:
(I)

a notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment; or

(ii)

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a stipulation of dismissal signed by all parties who have appeared.

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Fed. R. Civ. P. 41(a)(1)(A). Before plaintiff filed the notice of voluntary dismissal, defendants
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filed an answer to the complaint and a motion for summary judgment. Dckt. Nos. 19, 36.

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Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(I). However, defendants

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may choose to stipulate to dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should

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defendants decline to stipulate as such, the court may dismiss this action based on plaintiff’s

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request, “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that within 14 days of the date of this order, defendants

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may file and serve a document stipulating to dismissal of this action without prejudice pursuant

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to Rule 41(a)(1)(A)(ii). In the event defendants so stipulate, the court will construe the parties’

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filings as a stipulation for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).

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DATED: June 18, 2013.

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