Hetzel v. Lomeli

Full title: JOSEPH HETZEL, Plaintiff, v. LOMELI, Defendant.

Court: United States District Court, Eastern District of California

Date published: Aug 29, 2023

1:23-cv-01015-JLT-BAM (PC) (E.D. Cal. Aug. 29, 2023)

Opinion

1:23-cv-01015-JLT-BAM (PC)

08-29-2023

JOSEPH HETZEL, Plaintiff, v. LOMELI, Defendant.

BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

ORDER REGARDING PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL

(ECF No. 9)

BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

Plaintiff Joseph Hetzel (“Plaintiff”') is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. § 1983.

This action was removed from Kern County Superior Court on July 6, 2023. (ECF No. 1.) The filing fee was paid by Defendant the same date. On July 18, 2023, the Court screened Plaintiff's complaint and granted Plaintiff leave to file a first amended complaint or a notice of voluntary dismissal. (ECF No. 6.)

On August 8, 2023, Plaintiff filed a “Request for Dismissal of Case and Dismissal of Filing Fees.” (ECF No. 7.) The Court granted Plaintiff an opportunity to file a response to clarify his intent, and informed Plaintiff that a voluntary dismissal of this action would also result in the dismissal of the claims Plaintiff originally filed in Superior Court. (ECF No. 8.)

On August 28, 2023, Plaintiff filed a notice of voluntary dismissal together with a motion to proceed in forma pauperis. (ECF No. 11.)

“[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can't complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. Defendant did not file an answer in this Court, and it does not appear that Defendant filed an answer before the action was removed from state court.

As Plaintiff did not specify whether the dismissal is with or without prejudice, the Court finds that a dismissal without prejudice is appropriate. Fed.R.Civ.P. 41(a)(2).

Accordingly, this action is terminated, without prejudice, by operation of law without further order from the Court. Fed.R.Civ.P. 41(a)(1)(A)(i). The Clerk of the Court is directed to terminate all pending motions and deadlines, including the motion to proceed in forma pauperis, and close this case.

IT IS SO ORDERED.