Opinion
Case No.: 1:11-cv-00764 - JLT (PC)
04-12-2013
KENNETH HUSKEY, Plaintiff, v. PAM AHLIN, et. al, Defendants.
ORDER CONSTRUING THE MOTION TO
WITHDRAW PETITION AS A VOLUNTARY
MOTION TO DISMISS
ORDER GRANTING PLAINTIFF'S MOTION TO
DISMISS
(Doc. 14).
Plaintiff Kenneth Huskey ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. (Docs. 1, 9). Plaintiff consented to proceed before the jurisdiction of the Magistrate Judge on June 27, 2011. (Doc. 8). On March 26, 2013, the Court dismissed Plaintiff's complaint (Doc. 1) and granted Plaintiff twenty-one days in which to file an amended complaint. (Doc. 13).
Plaintiff timely responded to the March 26 Order on April 5, 2013, by filing a motion entitled "Motion to Withdraw Petition." (Doc. 14). Plaintiff reports that he cannot ameliorate the defects of his complaint within the allotted twenty-one day period. Id. at 2. Furthermore, Plaintiff believes that Hydrick v. Hunter may properly address his cause of action and it is not necessary to proceed in the present matter. Id. Therefore, the Court construes this motion as a voluntary motion to dismiss.
Plaintiff indicates that Hydrick v. Hunter is a class action now pending before the Court. (Doc. 14 at 2). The Court finds no record of such a case now pending before the U.S. District Court, Eastern District of California. Nonetheless, the Court grants Plaintiff's voluntary motion to dismiss.
A plaintiff is entitled to dismiss his litigation without a court order by filing a notice to dismiss before any opposing parties appears in the action. Fed. R. Civ. P. 41(1)(A)(i). Plaintiff filed this matter on May 11, 2011. No defendants have been served. Thus, no defendant has appeared in the action and Plaintiff is entitled to dismiss his litigation.
Accordingly, the Court HEREBY ORDERS that Plaintiff's motion be DEEMED a voluntary motion to dismiss under Fed. R. Civ. P. 41(1) and that this action is DISMISSED without prejudice. IT IS SO ORDERED.
Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE