Opinion
1:21-cv-00810-EPG (PC)
06-14-2021
SILVESTRE RAEL, Plaintiff, v. ANDREW ZEPP, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S MOTION TO DISMISS BE GRANTED (ECF NO. 5)
OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE
Silvestre Rael (“Plaintiff”) is a state prisoner proceeding pro se in this action. Plaintiff filed the complaint commencing this action on May 19, 2021. (ECF No. 1). Plaintiff did not file an application to proceed in forma pauperis. Additionally, it appears that Plaintiff did not intend to file this action in federal court. Accordingly, on May 21, 2021, the Court issued an order, directing Plaintiff to “either: 1) submit the attached application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $402.00 filing fee for this action; or 2) file a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).” (ECF No. 4, p. 2).
On June 11, 2021, Plaintiff filed a motion to dismiss. (ECF No. 5). Plaintiff moves to voluntarily dismiss this action because it was incorrectly filed in the wrong jurisdiction.
As Plaintiff filed a motion instead of a notice, the Court will treat Plaintiffs motion as a motion to dismiss under Federal Rule of Civil Procedure 41(a)(2).
“Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2).
Given that this case is still at the screening stage, and given Plaintiffs representation that he filed this action in the wrong jurisdiction, the Court finds that Plaintiffs motion to dismiss should be granted and that this action should be dismissed without prejudice to Plaintiff filing this action in state court.
Accordingly, the Court HEREBY RECOMMENDS that:
1. This action be dismissed, without prejudice to Plaintiff filing this action in state court; and
2. The Clerk of Court be directed to close this case.
These findings and recommendations will be submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is 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)).
Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case.
IT IS SO ORDERED.