Cavalier v. Pollard et al

Filing 7

ORDER Granting Motion to Withdraw and Dismiss Civil Action Pursuant to Fed. R. Civ. P. 41(a) and Denying Motion to Proceed In Forma Pauperis as Moot. (ECF Nos. #2 , #6 ). Signed by Judge Dana M. Sabraw on 9/10/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT THOMAS CAVALIER,
CDCR #E-98747,
vs.

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ORDER GRANTING MOTION
TO WITHDRAW AND DISMISS
CIVIL ACTION PURSUANT TO
Fed. R. Civ. P. 41(a) AND DENYING
MOTION TO PROCEED IN FORMA
PAUPERIS AS MOOT

Plaintiff,

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Case No.: 3:20-cv-01379-DMS-AHG

MARCUS POLLARD;
BPH COMMISSIONER GROUNDS;
GOV. GAVIN NEWSOM,
Defendants.

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[ECF Nos. 2, 6]

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On July 17, 2020, Plaintiff Robert Thomas Cavalier, proceeding pro se and while

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incarcerated at Richard J. Donovan Correctional Facility in San Diego, California, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 (“Compl.,” ECF No. 1), together with

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a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). On August 20, 2020, he filed

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a “Motion to Withdraw and Dismiss ‘Cavalier v. Pollard’” (ECF No. 6).

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I.

Procedural Background

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Three days after he filed this case, on July 21, 2020, Plaintiff filed a separate

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Complaint and Motion to Proceed IFP in Thomas v. Newsom, et al., S.D. Cal. Civil Case

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No. 3:20-cv-01398-MMA-KSC (“Newsom I”), naming most of the same Defendants, and

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alleging what appeared to be the same claims. See Bias v. Moynihan, 508 F.3d 1212, 1255
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3:20-cv-01379-DMS-AHG

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(9th Cir. 2007) (permitting court to take “‘notice of proceedings in other courts, both within

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and without the federal judicial system, if those proceedings have a direct relation to

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matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

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2002)). Because the claims raised in Newsom I were deemed duplicative of those alleged

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and still pending in this case, Newsom I was dismissed sua sponte pursuant to 28 U.S.C. §

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1915A(b)(1) without prejudice to Plaintiff’s pursuit of those claims in this previously-filed

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action. See Newsom I, S.D. Cal. Civil Case No. 3:20-cv-01398-MMA-KSC, ECF No. 4.

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On August 20, 2020, Plaintiff filed yet another Complaint, Cavalier v. Newsom, et

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al., S.D. Cal. Civil Case No. 3:20-01615-MMA-DEB (“Newsom II”), together with another

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Motion to Proceed IFP, and the same “Motion to Withdraw and Dismiss ‘Cavalier v.

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Pollard’” he filed in this action. See Newsom II, S.D. Cal. Civil Case No. 3:20-01615-

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MMA-DEB (ECF Nos. 1, 2, 3). Plaintiff’s Complaint in Newsom II, like his Complaints in

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this case (“Cavalier v. Pollard”) and Newsom I, all allege substantially the same claims

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against substantially the same parties.

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II.

Motion to Withdraw and Dismiss “Cavalier v. Pollard”

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In Plaintiff’s Motion to Withdraw and Dismiss, he contends that his Complaint in

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this case was incomplete at the time he filed it, and that his “2d Complaint” filed on July

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21 (Newsom I) better “articulates what he is trying to explain.” See ECF No. 6 at 2‒3.

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Plaintiff acknowledges, however, that Newsom I has already been dismissed without

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prejudice; therefore, he asks instead to withdraw Cavalier v. Pollard, and to proceed with

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the new Complaint e-filed with his Motion (Newsom II). See id. at 4‒5. As noted above,

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Newsom II was filed by the Clerk of Court on August 20, 2020, and has been assigned Civil

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Case No. 3:20-cv-01615-MMA-DEB. Plaintiff’s Complaint and a new Motion to Proceed

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IFP in that case remain pending before Judge Anello. See Newsom II, S.D. Cal. Civil Case

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No. 3:20-cv-01615-MMA-DEB (ECF Nos. 1, 2).

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3:20-cv-01379-DMS-AHG

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

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

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

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

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

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Plaintiff has notified the Court that he does not wish to pursue Cavalier v. Pollard 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

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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.

effect

as

a

notice

of

dismissal.”

Ramirez-Ramos

v.

Ryan,

No.

Conclusion and Order

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For the reasons explained, Plaintiff’s Motion to Withdraw and Dismiss Cavalier v.

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Pollard (ECF No. 6), construed as a Notice of Voluntary Dismissal pursuant to Fed. R.

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Civ. P. 41(a) is GRANTED. Plaintiff’s Motion to Proceed IFP (ECF No. 2) is DENIED

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as moot, and this civil action is DISMISSED without prejudice to Plaintiff’s pursuit of the
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3:20-cv-01379-DMS-AHG

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claims as re-alleged and currently pending before Judge Anello in Cavalier v. Newsom, et

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al., S.D. Cal. Civil Case No. 3:20-cv-01615-MMA-DEB.

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IT IS SO ORDERED.

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Dated: September 10, 2020

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