Opinion
1:16-cv-00587-BAM (PC)
09-13-2016
SENARBLE CAMPBELL, Plaintiff, v. SANTILLAN, Defendant.
ORDER DENYING PLAINTIFF'S REQUEST FOR COMPETENCY DETERMINATION ORDER GRANTING PLAINTIFF'S REQUEST FOR VOLUNTARY DISMISSAL
(ECF No. 11) ORDER DIRECTING CLERK OF COURT TO CLOSE CASE AND ADJUST DOCKET TO REFLECT VOLUNTARY DISMISSAL
Plaintiff Senarble Campbell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff initiated this action on April 26, 2016. Plaintiff consented to the jurisdiction of a United States Magistrate Judge. (ECF No. 6).
On June 17, 2016, the Court screened Plaintiff's complaint with leave to amend within thirty days. (ECF No. 7). On July 13, 2016, the Court denied Plaintiff's request to stay this action and granted him an extension of time to file an amended complaint. (ECF No. 9).
On September 8, 2016, the matter was reassigned to the undersigned Magistrate Judge for all further proceedings. (ECF No. 10).
On September 12, 2016, Plaintiff filed a document entitled "Plaintiff Request Complaint Dismiss Without Prejudice." Plaintiff requests that the Court "dismiss the complaint without prejudice" because his "mental existence will not allow him to proceed within this complaint." (ECF No. 11, p. 1). In the alternative, Plaintiff requests a competency determination pursuant to Federal Rule of Civil Procedure 17(c). (Id.)
Request for Competency Determination
In relevant part, Federal Rule of Civil Procedure 17(c) mandates that the court "appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2). Pursuant to the Ninth Circuit, a district court must hold a competency hearing "when substantial evidence of incompetence is presented." Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); see also Krain v. Smallwood, 880 F.2d 119, 1121 (9th Cir. 1989) (preferred procedure when a substantial question of mental competence exists is for the district court to conduct a hearing).
In considering Plaintiff's request for a competency determination, the Court has reviewed the entirety of the docket, including Plaintiff's complaint, motion for temporary suspension of legal proceedings and notice of voluntary dismissal. (ECF Nos. 1, 8, 11). These pleadings and papers are coherent and state Plaintiff's position and arguments clearly in this action. There is no indication that Plaintiff is not competent to prosecute this action, and Plaintiff has not presented any evidence, much less substantial evidence, to justify a competency hearing. Accordingly, Plaintiff's request for a competency determination shall be denied.
Request for Voluntary Dismissal
The Court construes Plaintiff's motion as one requesting voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). "[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment." Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). "[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can't complain, and the district court lacks jurisdiction to do anything about it." Id. at 1078. In this action, there is no operative complaint on file, no defendant has been served and no defendant has filed an answer or motion for summary judgment. Accordingly, the Clerk of the Court will be directed to close the file in this case and adjust the docket to reflect voluntary dismissal of this action.
Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's request for a competency determination pursuant to Federal Rule of Civil Procedure 17(c) is DENIED;IT IS SO ORDERED.
2. The Clerk of the Court is ORDERED to CLOSE the file in this case and adjust the docket to reflect voluntary dismissal of this action without prejudice pursuant to Rule 41(a); and
3. All pending motions, if any, are terminated.
Dated: September 13 , 2016
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE