Tombs v. Maccufs et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/20/2013 ORDERING that the court construes plaintiff's 9/18/2013 filing as a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i); and the Clerk is directed to close this case. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY E. TOMBS,

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No. 2:13-cv-1384-EFB P

Plaintiff,
v.

ORDER

MARION MACCUFS, et al.,
Defendants.

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

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U.S.C. § 1983. On September 18, 2013, plaintiff informed the court that he filed this action by

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mistake, and that he wishes to proceed instead in case No. 2:13-cv-1393-JAM-CKD P. ECF No.

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6. He states he does not know how the mistake happened, but indicates he has been having

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“problems” with the mail. Id.

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The court construes plaintiff’s filing as a notice of voluntary dismissal made pursuant to

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Federal Rule of Civil Procedure 41(a)(1)(A)(i), which deprives this court of jurisdiction over the

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action. See Fed. R. Civ. P. 41(a)(1)(A) (“[T]he plaintiff may dismiss an action without a court

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order by filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a

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motion for summary judgment . . . .”); see also Fed. R. Civ. P. 41(a)(1)(B) (“Unless the notice [of

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dismissal] states otherwise, the dismissal is without prejudice.”). Dismissal under this rule

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requires no action on the part of the court and divests the court of jurisdiction once the notice of
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voluntary dismissal is filed. See, e.g., United States v. Real Property Located at 475 Martin

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Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008). In light of that dismissal, the Clerk

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of Court is directed to close this case.1

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SO ORDERED.

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DATED: September 20, 2013.

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If plaintiff wishes to proceed with the other case he is litigating, all filings in that case must be
clearly labeled with the correct case number.
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