Opinion
No. C 11-05211 EJD (PR)
08-03-2015
JOSE LUIS MORALES, Plaintiff, v. MATHEW CATE, et al., Defendants.
ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL; CLOSING CASE (Docket No. 54.)
Plaintiff, a California inmate, filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983 against Pelican Bay State Prison ("PBSP") officials for unconstitutional acts. Plaintiff has filed a motion to voluntarily dismiss the matter, indicating that he is refiling the claims in a federal habeas action. (Docket No. 54.)
A plaintiff has the absolute right to dismiss his or her action by filing a notice of dismissal "at any time before service by the adverse party of an answer or of a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(i). Said dismissal may be with or without prejudice, but unless plaintiff's notice of dismissal states otherwise, it is deemed to be "without prejudice." See Fed. R. Civ. P. 41(a)(1); Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959). No dispositive motion has been filed in this matter. Accordingly, the motion is GRANTED.
CONCLUSION
For the reasons set forth above, this case is DISMISSED without prejudice. The Clerk shall file the attached federal habeas petition as a new habeas action, and send Plaintiff the necessary filing fee notices.
The Clerk shall terminate any pending motions and close this action. DATED: 8/3/2015
/s/_________
EDWARD J. DAVILA
United States District Judge
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on 8/3/2015, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Jose Luis Morales P 63392
California Substance Abuse Treatment Facility and State Pris
P. O. Box 5242
Corcoran, CA 93212
Richard W. Wieking, Clerk
/s/By: Elizabeth Garcia, Deputy Clerk