Altheide v. Johnson et al

Filing 7

ORDER granting #6 Motion to Withdraw (construed as a motion for voluntary dismissal); denying as moot #1 Motion/Application for Leave to Proceed in forma pauperis. It is further ordered that this action is dismissed in its entirety without prejudice. It is further ordered that the Clerk of the Court will enter judgment accordingly. Signed by District Judge Anne R. Traum on 5/10/2022. (Copies have been distributed pursuant to the NEF - CJD)

Case 3:22-cv-00143-ART-CLB Document 7 Filed 05/10/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JASON ALTHEIDE,

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Plaintiff,

v.

ORDER

CALVIN JOHNSON, et al.,
Defendants.

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Case No. 3:22-cv-00143-ART-CLB

I.

DISCUSSION

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Plaintiff initiated this action on March 23, 2022, with a civil rights

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complaint under 42 U.S.C. § 1983. (ECF No. 1-1.) On April 8, 2022, Plaintiff

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filed a first amended complaint, and on April 29, 2022, Plaintiff filed a second

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amended complaint. (ECF Nos. 3, 5.) Plaintiff has now filed a motion entitled

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“motion to withdraw.” (ECF No. 6.) In the motion Plaintiff states simply “Altheide

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withdraws complaint as State would better suit jurisdiction of authorities.” (Id.

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at 1.) It appears that Plaintiff is stating that he wishes to pursue his claims in

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Nevada State Court, rather than proceed in federal court. The Court construes

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this document as a motion for voluntary dismissal.

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Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff may dismiss an

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action without a court order by filing “a notice of dismissal before the opposing

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party serves either an answer or a motion for summary judgment.” Fed. R. Civ.

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P. 41(a)(1)(A)(i). The complaint has not been served on the Defendants, and thus

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the Defendants have not filed an answer or a motion for summary judgment.

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Accordingly, the Court grants Plaintiff’s motion to voluntarily dismiss this action

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without prejudice.

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Case 3:22-cv-00143-ART-CLB Document 7 Filed 05/10/22 Page 2 of 2

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If the Court has misunderstood Plaintiff’s filing, Plaintiff may file a motion

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for reconsideration within 30 days advising the Court that he did not intend to

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file a motion for voluntary dismissal and requesting that this case be reopened.

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II.

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CONCLUSION
For the foregoing reasons, it is ordered that the Court construes ECF No.

6 as a motion for voluntary dismissal, and the Court grants the motion.

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It is further ordered that if Plaintiff did not intend to file a motion for

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voluntary dismissal, he may file a motion for reconsideration within 30 days

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requesting that this case be reopened.

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It is further ordered that Plaintiff’s application to proceed in forma pauperis
(ECF No. 1) is denied as moot.
It is further ordered that this action is dismissed in its entirety without
prejudice.
It is further ordered that the Clerk of the Court will enter judgment
accordingly.

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DATED THIS 10th day of May 2022.

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United States District Court

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