Dunsmore v. State of California et al

Filing 32

ORDER Granting Motion for Voluntary Dismissal. Signed by Judge Anthony J. Battaglia on 10/14/2020. (All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARRYL DUNSMORE,
Inmate Booking No. 19777041,

Case No.: 3:20-cv-00406-AJB-WVG
Plaintiff,

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ORDER GRANTING MOTION FOR
VOLUNTARY DISMISSAL

vs.

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STATE OF CALIFORNIA; SAN DIEGO
COUNTY; SAN DIEGO SHERIFF’S
DEP’T; DEPARTMENT OF
CORRECTIONS; GORE
XAVIER BECCERA; ATTORNEY
GENERAL,
Defendants.

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I.

Procedural History
On March 2, 2020, Darryl Dunsmore (“Plaintiff”), currently housed at the San

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Diego Central Jail located in San Diego, California, and proceeding pro se, filed a civil

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rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition,

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Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a). (See ECF No. 3.)
3:20-cv-00406-AJB-WVG

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On April 6, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP and

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simultaneously DISMISSED his Complaint for failing to state a claim upon which relief

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could be granted. (See ECF No. 4.) Plaintiff was granted leave to file an amended

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pleading in order to correct the deficiencies of pleading identified in the Court’s Order.

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(See id.)

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On July 1, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF

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No. 11.) In addition, to his FAC, Plaintiff submitted a declaration from Ken Karan 1, an

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attorney who declares that he personally met with Plaintiff on April 21, 2020. (See id.,

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ECF No. 11 at 18.) Karan declares that Plaintiff asked him to mail an amended pleading

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in this matter on his behalf and he “personally put the amended complaint in an envelope

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and mailed it to this Court with first class postage pre-paid” on or about April 22, 2020.

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(Id.) However, he noted that a review of the Court’s docket indicates that the amended

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complaint had not been filed. (Id.)

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On July 17, 2020, Ken Karan submitted a second declaration in which he indicates

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that he was “wrong” in his previous declaration and in fact, he had not previously mailed

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Plaintiff’s amended pleading which he recently discovered while “moving file boxes.”

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(Karan Decl, ECF No. 13 at 1.) Karan attached as an exhibit the “true and correct

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original of the amended complaint Mr. Dunsmore is attempting to file.” (Id. at 2.)

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Attached to Karan’s second declaration was also a “Motion for Civil Contempt,” “Motion

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for Appointment of Counsel,” “Motion for Temporary Restraining Order and Preliminary

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Injunction,” and “First Amended Complaint.” (Id. at 3-26.)

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On July 17, 2020, Plaintiff filed a motion to strike the amended complaint filed on

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July 1, 2020 and requested that the Court file the First Amended Complaint (“FAC”)

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attached to Karan’s second declaration. The Court GRANTED Plaintiff’s Motion and

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directed the Clerk of Court to strike the amended complaint filed on July 1, 2020.

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Karan has not submitted a substitution of attorney in this matter and thus, it does not appear that Karan
is representing Plaintiff in the matter before this Court.
3:20-cv-00406-AJB-WVG

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The Clerk of Court was directed to file Plaintiff’s FAC, see ECF No. 13 at 17-36,

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Motion for Civil Contempt, see ECF No. 13 at 3-4, Motion for Appointment of Counsel,

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see ECF No. 13 at 5-6, and Motion for Temporary Restraining Order and Preliminary

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Injunction, see ECF No. 13 at 7-16, as separate entries in the Court’s docket.

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On August 4, 2020, the Court DENIED Plaintiff’s Motions for Civil Contempt,

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Appointment of Counsel, Temporary Restraining Order and Preliminary Injunction. See

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ECF No. 23. In addition, the Court DISMISSED Plaintiff’s FAC for failing to state a

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claim upon which relief could be granted. Id. Plaintiff was granted sixty (60) days to file

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an amended complaint in order to correct the problems of pleading identified in the

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Court’s Order. See id.

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Instead of filing an amended complaint, Plaintiff has filed a “motion to stand on his

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Complaint and for a final order so he may appeal” which the Court liberally construes as

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a Motion for Voluntary Dismissal pursuant to the Fed.R.Civ.P. 41(a)(1). See ECF No. 29.

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II.

Motion for Final Order

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The filing of a notice of voluntary dismissal with the court automatically

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terminates the action as to the defendants who are the subjects of the notice. . . . Such a

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dismissal leaves the parties as though no action had been brought.” American Soccer Co.,

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Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (citing Wilson v. City

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of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations and footnote omitted)). Thus,

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because Plaintiff has notified the Court that he does not wish to pursue this matter at this

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time, no party has yet to be served with any valid pleading, and no answer or motion for

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summary judgment has yet to be filed, voluntary dismissal pursuant to Fed. R. Civ. P.

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41(a)(1)(A)(i) is appropriate. See Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d

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1532, 1534–35 (9th Cir. 1987) (“As the rule states, no action by the court is required for

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dismissal by notice under Rule 41(a)(1)(i). A voluntary dismissal by a plaintiff under this

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subsection automatically terminates the action upon the filing of the dismissal with the

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clerk.”). “[T]he fact that [Plaintiff’s] filing was named as a ‘motion’ does not preclude its

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operative effect as a notice of dismissal.” Ramirez-Ramos v. Ryan, No.
3:20-cv-00406-AJB-WVG

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CV188086PCTNVWJFM, 2019 WL 885624, at *6 (D. Ariz. Jan. 18, 2019), report and

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recommendation adopted, 2019 WL 859690 (D. Ariz. Feb. 22, 2019) (“Although the

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document filed by [plaintiff] was denominated a Motion for Voluntary Dismissal rather

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than a notice of dismissal as specified in Rule 41(a)(1), the Court finds this distinction to

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be without legal significance since the effect desired by [plaintiff] in filing the document

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with the Court was clearly to have his claims dismissed without prejudice.”); see also 9

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Fed. Prac. & Proc. Civ. § 2363, Voluntary Dismissal—Dismissal as a Matter of Right (3d

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ed.) (“It is merely a notice and not a motion, although a notice in the form of a motion is

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sufficient.”).

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III.

Conclusion and Order
For the reasons explained, Plaintiff’s Motion seeking a final order, ECF No. 29,

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construed as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) is

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GRANTED. This civil action also remains DISMISSED for the reasons set forth in

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Court’s August 4, 2020 Order.

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The Clerk of Court is directed to close the file.

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IT IS SO ORDERED.

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Dated: October 14, 2020

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3:20-cv-00406-AJB-WVG