Opinion
1:20-cv-00534-AWI-SAB (PC)
06-29-2021
JOSHUA JASON DALKE, Plaintiff, v. KING CLARK, et al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF'S MOTION TO DISMISS THIS ACTION
(ECF No. 103)
Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On May 24, 2021, Plaintiff filed a motion to dismiss the instant action. Defendants have not file an opposition and the time to do so has now passed. Local Rule 230(1).
Plaintiff previously filed a motion to dismiss on May 12, 2021, which he later retracted from consideration. (ECF Nos. 98, 100, 102.)
Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1)(A). Prior to filing the motion to dismiss, Defendants filed an answer. (ECF No. 75.) Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, Defendants may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii). If Defendants decline to stipulation, the Court may dismiss this action based upon Plaintiff's request, “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
In the present motion, Plaintiff submits that he wishes to dismiss this action in the hope that he will be parole in July 2021. Inasmuch as Plaintiff has continued to litigate this action with several different filings after the May 24, 2021 request to dismiss, it appears that he does not wish to dismiss this action. Accordingly, Plaintiffs motion for voluntarily dismiss should be denied.
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiffs motion to voluntarily dismiss this action be denied.
This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with this Findings and Recommendation, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendation.” The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.