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)

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Case 3:22-cv-00143-ART-CLB Document 7 Filed 05/10/22 Page 1 of 2 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 JASON ALTHEIDE, 7 8 9 Plaintiff, v. ORDER CALVIN JOHNSON, et al., Defendants. 10 11 Case No. 3:22-cv-00143-ART-CLB I. DISCUSSION 12 Plaintiff initiated this action on March 23, 2022, with a civil rights 13 complaint under 42 U.S.C. § 1983. (ECF No. 1-1.) On April 8, 2022, Plaintiff 14 filed a first amended complaint, and on April 29, 2022, Plaintiff filed a second 15 amended complaint. (ECF Nos. 3, 5.) Plaintiff has now filed a motion entitled 16 “motion to withdraw.” (ECF No. 6.) In the motion Plaintiff states simply “Altheide 17 withdraws complaint as State would better suit jurisdiction of authorities.” (Id. 18 at 1.) It appears that Plaintiff is stating that he wishes to pursue his claims in 19 Nevada State Court, rather than proceed in federal court. The Court construes 20 this document as a motion for voluntary dismissal. 21 Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff may dismiss an 22 action without a court order by filing “a notice of dismissal before the opposing 23 party serves either an answer or a motion for summary judgment.” Fed. R. Civ. 24 P. 41(a)(1)(A)(i). The complaint has not been served on the Defendants, and thus 25 the Defendants have not filed an answer or a motion for summary judgment. 26 Accordingly, the Court grants Plaintiff’s motion to voluntarily dismiss this action 27 without prejudice. 28 1 Case 3:22-cv-00143-ART-CLB Document 7 Filed 05/10/22 Page 2 of 2 1 If the Court has misunderstood Plaintiff’s filing, Plaintiff may file a motion 2 for reconsideration within 30 days advising the Court that he did not intend to 3 file a motion for voluntary dismissal and requesting that this case be reopened. 4 II. 5 6 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. 7 It is further ordered that if Plaintiff did not intend to file a motion for 8 voluntary dismissal, he may file a motion for reconsideration within 30 days 9 requesting that this case be reopened. 10 11 12 13 14 15 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. 16 17 DATED THIS 10th day of May 2022. 18 19 United States District Court 20 21 22 23 24 25 26 27 28 2

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