Lavery v. Dhillon

Filing 113

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr. on 09/30/2016 ADOPTING IN FULL 108 Findings and Recommendations; and DENYING Plaintiff's 81 Motion for Preliminary Injunction Relief and a Temporary Restraining Order. (Jackson, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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No. 2:13-cv-2083 MCE AC P

Plaintiff,
v.

MEMORANDUM AND ORDER

B. DHILLON et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 29, 2016, the magistrate judge filed an order and findings and

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recommendations recommending that plaintiff’s motion for preliminary injunctive relief and a

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temporary restraining order be denied, and, in response to plaintiff’s “motion to dismiss without

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prejudice,” directing plaintiff to file a notice clarifying whether he wishes to proceed with this

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action. ECF No. 108. The findings and recommendations were served on all parties and

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contained notice to all parties that any objections to the findings and recommendations were to be

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filed within fourteen days. Defendants have filed objections to the findings and

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recommendations, ECF Nos. 109 & 110, as has plaintiff, ECF No. 111.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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In their objections, defendants assert the magistrate judge lacked authority once Plaintiff

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filed his “motion to dismiss without prejudice,” ECF No. 101, which constituted a notice of

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voluntary dismissal under Rule 41(a)(1) and was effective upon filing. See Fed. R. Civ. P.

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41(a)(1) ([T]he plaintiff may dismiss an action without order of the court . . . by filing a notice of

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dismissal at any time before service by the adverse party of an answer or motion for summary

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judgment.”); Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993) (“The filing of the notice [of

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dismissal under Rule 41(a)(1)] itself closes the file.”) (internal citations and alterations omitted).
“Courts in this circuit have an obligation to give a liberal construction to the filings of pro

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se litigants, especially when they are civil rights claims by inmates,” Blaisdell v. Frappiea, 729

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F.3d 1237, 1241 (9th Cir. 2013). In the instant case, plaintiff’s “motion to dismiss” was

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equivocal: plaintiff appeared to assert that he wished to continue seeking relief, but could not

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move forward without assistance from the court or some other source. See ECF No. 101 at 1-5.

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Accordingly, the magistrate judge provisionally construed plaintiff’s motion as a request for

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additional assistance, see ECF No. 108 at 5:7-12, an apparently accurate construction based on

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plaintiff’s subsequent filings, see ECF Nos. 104, 105, 106, 107, 111. Because plaintiff’s “motion

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to dismiss” was not clearly a notice of voluntary dismissal under Rule 41(a)(1), the filing of the

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motion did not operate to close this action, and the magistrate judge acted within her authority to

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adjudicate plaintiff’s motion for injunctive relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 29, 2016 are adopted in full;

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2. Plaintiff’s motion for preliminary injunctive relief and a temporary restraining order
(ECF No. 81) is DENIED.
IT IS SO ORDERED.Dated: September 30, 2016

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