Opinion
Case No.: 3:19-cv-00510-CAB-MSB
12-20-2019
CRAIG K. GARRETT, CDCR #K-95956, Plaintiff, v. RALPH DIAZ, et al., Defendants.
ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL PURSUANT TO Fed. R. Civ. P. 41(a)
[ECF Nos. 6, 14]
On March 15, 2019, Plaintiff, proceeding pro se and while incarcerated at the Salinas Valley State Prison located in Soledad, California, filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a motion requesting the appointment of counsel (ECF No. 3) and a motion to proceed in forma pauperis ("IFP") (ECF No. 2).
Plaintiff later filed a notice of change of address and he is currently housed at the California State Prison - Los Angeles County, located in Lancaster, California. See ECF No. 5. --------
On May 10, 2019, the Court denied Plaintiff's motion for appointment of counsel, granted his request for IFP status and dismissed the Complaint for failing to state a claim upon which relief could be granted. (ECF No. 4.) The Court granted Plaintiff 45 days leave to file amended pleading, and directed the Clerk of the Court to provide him with a form for doing so. Id. at 15-16.
Instead, on June 3, 2019, Plaintiff filed a "Notice of Intent Not to Amend the Complaint," along with a "Notice of Appeal" to the Ninth Circuit Court of Appeals. (ECF Nos. 6, 7.) However, the appeal was ultimately dismissed "because the order challenged in the appeal is not final or appealable." (ECF No. 10.) In addition, on November 19, 2019, Plaintiff filed a "Motion to Obtain Final Judgment." (ECF No. 14.) This Motion, along with Plaintiff's "Notice of Intent Not to Amend the Complaint," the Court will liberally construe as a "Motion for Voluntary Dismissal" pursuant to Fed. R. Civ. P. 41(a).
The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice .... Such a dismissal leaves the parties as though no action had been brought." American Soccer Co., Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (citing Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations and footnote omitted)). Thus, because Plaintiff has notified the Court that he does not wish to pursue amendment at this time, no party has yet to be served with any valid pleading, and no answer or motion for summary judgment has yet to be filed, voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) is appropriate. See Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532, 1534-35 (9th Cir. 1987) ("As the rule states, no action by the court is required for dismissal by notice under Rule 41(a)(1)(i). A voluntary dismissal by a plaintiff under this subsection automatically terminates the action upon the filing of the dismissal with the clerk.").
To the extent that Plaintiff also seeks to amend the names of Defendants and include additional exhibits to his original Complaint, this request is DENIED. The Court previously granted Plaintiff leave to file an amended complaint and informed him that his amended complaint "must be complete by itself without reference to his original pleading." (ECF No. 4 at 16.) He chose not to amend. (See ECF No. 6.)
Therefore, should Plaintiff wish to prosecute the claims originally alleged in this case, along with his purported amendments, he should file a new and separate civil action, together with either the $400 civil filing fee required by 28 U.S.C. § 1914(a), or a Motion to Proceed IFP.
Conclusion and Order
For the reasons explained, Plaintiff's Motion for Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) (ECF Nos. 6, 14) is GRANTED.
The case is DISMISSED without prejudice.
IT IS SO ORDERED. Dated: December 20, 2019
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge