Opinion
No. 1:13-cv-00312-DAD-SAB
03-21-2016
HUSSEIN ALIKIETTY, Plaintiff, v. A. WALKER, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS DEFENDANT L. RUMBLES FROM THE ACTION
(Doc. No. 50)
On March 5, 2013, plaintiff Hussein Ali Kietty, proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's excessive use of force claim brought against defendants Deathriage, Duty, Walker, Brumbaugh, Silva, Astorga, and Rumbles.
On November 5, 2014, defendants Deathriage, Duty, Walker, Brumbaugh, Silva, and Astorga filed an answer to the complaint. (Doc. No. 28.) Defendant Rumbles filed an answer on October 6, 2015. (Doc. No. 46.)
On February 1, 2016, plaintiff filed a motion to voluntarily dismiss defendant Rumbles from the action. (Doc. No. 50.) On March 17, 2016, defendant Rumbles filed a statement of non-opposition to plaintiff's motion. (Doc. No. 54.) /////
A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that he will suffer some plain legal prejudice as a result of the dismissal. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Rule 42(a)(2) allows the court to grant a plaintiff's dismissal motion with appropriate terms and conditions to protect the defendant from prejudice. U.S. ex rel., Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1988).
In light of the statement of non-opposition filed on behalf of defendant Rumbles, dismissal is appropriate and plaintiff's motion will be GRANTED. Fed. R. Civ. P. 4(a)(2). Accordingly, defendant Rumbles is DISMISSED from this action, and the matter is referred back to the assigned magistrate judge for further proceedings. IT IS SO ORDERED. Dated: March 21 , 2016
/s/_________
UNITED STATES DISTRICT JUDGE