Opinion
1:22-cv-01036-ADA-HBK (PC)
10-28-2022
DARONTA TYRONE LEWIS, Plaintiff, v. GAVIN NEWSOME, ET. AL., Defendants.
NOTICE OF VOLUNTARILY DISMISSAL UNDER RULE 41(a)(1)(A)(i)
(Doc. No. 8)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's pleading titled “motion to withdraw federal civil rights action without prejudice” filed on October 27, 2022. (Doc. No. 8). On October 12, 2022, the undersigned issued Findings and Recommendations to the district court to deny Plaintiff's motion for leave to proceed in forma pauperis under § 1915(g) due to Plaintiff's three-striker and his failure to establish the imminent danger of physical injury exception. (Doc. No. 7). In response, Plaintiff filed the instant pleading asking the Court “to grant [this motion ] without prejudice” because Plaintiff seeks to “have an attorney refile [it].” (Doc. No. 8 at 2).
Here, no Defendant has been served, or filed a response or motion for summary judgment and Plaintiff seeks dismissal, without prejudice, of this action. The Court construes the pleading as a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i). See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to “create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis”); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally). Considering Plaintiff's request for dismissal without prejudice, this case is dismissed with prejudice by operation of law without further order by the Court. See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (noting a plaintiff has an absolute right to dismiss a case, prior to defendant serving an answer or motion for summary judgment, which is effective upon notice, without court order).
Accordingly, Plaintiff's pleading titled “motion to withdraw federal civil rights action without prejudice” (Doc. No. 8) is construed as a notice under Rule 41. The Clerk of the Court shall terminate all deadlines and motions and CLOSE THIS CASE to reflect Plaintiff's voluntary dismissal without prejudice under Rule 41(a)(1)(A)(i).