Opinion
Case No.: 3:17-cv-00587-CAB-JMA
06-30-2017
BRANDON FAVOR, CDCR #G-60488; LUIS MANUEL GARCES, CDCR #V-47652, Plaintiffs, v. STATE OF CALIFORNIA, et al., Defendants.
ORDER GRANTING MOTION TO WITHDRAW COMPLAINT AND STRIKING MOTION FOR EXTENSION OF TIME
[ECF Nos. 3, 5]
On March 20, 2017, "Brandon Favor, LLP," a prisoner incarcerated at California Correctional Institution ("CCI") in Tehachapi, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on behalf of a fellow inmate, Manuel Luis Garces. (ECF No. 1).
The Complaint is not signed by Garces, but is instead signed by Favor, who claims to be a limited liability partnership doing business as "Miller & Miller Associates, 3307 West 43rd Street, Los Angeles, California." (ECF No. 1 at 1, 8.) The pleading contains constitutional catchphrases like "freedom from cruel and unusual punishment," "equal protection," and "due process," but it contains no factual allegations whatsoever, and it seeks injunctive relief preventing "further prosecution," and ordering "immediate release with or by bond/bail." (Id. at 4-7.)
According the California State Bar website, the address provided by Favor is for Halvor Thomas Miller, Jr., California State Bar #40247, an attorney who is no longer eligible to practice law in California. See
Neither Favor nor Garces paid the $400 civil filing fee required to commence a civil action pursuant to 28 U.S.C. § 1914(a), and neither had filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). Indeed, Brandon Favor, CDCR #G-60488, is no longer entitled to proceed IFP as a result of his frivolous filing. See Favor v. Richard J. Donovan Correctional Facility, et al., S.D. Cal. Civil Case No. 3:15-cv-01547-AJB (DHB) (Oct. 21, 2015) (Order denying leave to proceed IFP pursuant to 28 U.S.C. § 1915(g)) (ECF No. 7); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court "'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'") (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Therefore, this case is subject to immediately dismissal for this reason alone.
However, on April 5, 2017, Plaintiff Garces filed a Motion requesting the "withdrawal" of the Complaint "without prejudice," acknowledging it was filed by Favor. Garces also requests no further "document, motion, complaint or request ... be filed on [his] behalf ... by Mr. Brandon Favor." (ECF No. 3 at 1.)
Conclusion and Order
The Court construes Garces' request as a Notice of Voluntary Dismissal and GRANTS his Motion to Withdraw pursuant to FED. R. CIV. P. 41(a)(1) (ECF No. 3). The case is DISMISSED without prejudice. Brandon Favor's subsequent Motion for Extension of Time (ECF No. 5) is STRICKEN from the record.
The Clerk shall enter judgment accordingly. IT IS SO ORDERED. Dated: June 30, 2017
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge
http://members.calbar.ca.gov/fal/Member/Detail/40247 (last visited June 29, 2017).