Opinion
CASE NO. 1:13-CV-1821 AWI MJS
01-04-2016
JEREMY PINSON, Plaintiff, v. FEDERAL BUREAU OF PRISONS, Defendant.
ORDER CLOSING CASE IN LIGHT OF REQUESTED DISMISSAL AND ORDER DENYING ALL PENDING MOTIONS AS MOOT
(Doc. Nos. 58, 66, 83)
On December 4, 2015, the Court directed Plaintiff to show cause why his in forma pauperis status should not be revoked. See Doc. No. 82. On December 21, 2015, Plaintiff responded that he concurred with the Court's analysis in the show cause order, he could not pay the $400.00 filing fee, and requested that his case be dismissed under Federal Rule of Civil Procedure 41(a). See Doc. No. 83. On December 22, 2015, Defendant filed a notice of non-opposition to Plaintiff's requested dismissal. See Doc. No. 84.
Federal Rule of Civil Procedure 41(a) "allows plaintiffs voluntarily to dismiss some or all of their claims against some or all defendants." Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has not signed a stipulation to dismiss, a plaintiff's voluntary dismissal must be effected through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent part: "Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. Pro. 41(a)(2). "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
The Court concludes that dismissal is appropriate. There are no counterclaims, Defendant is in agreement that the case should be dismissed, and the Court warned Plaintiff that dismissal would occur if he either did not respond to the order to show cause or if he could not pay the filing fee. Given these considerations, the Court will grant Plaintiff's request for dismissal and close this case. See Fed. R. Civ. Pro. 41(a)(2); Smith, 263 F.3d at 975.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Request for Dismissal, which is construed as a request for dismissal under Federal Rule of Civil Procedure 41(a)(2), is GRANTED (Doc. No. 83) is GRANTED;IT IS SO ORDERED. Dated: January 4, 2016
2. The Clerk shall CLOSE this case; and
3. All pending motions (Doc. Nos. 58, 66) are DENIED as moot.
/s/_________
SENIOR DISTRICT JUDGE