Opinion
No. CV 1-08-946-RCC.
March 5, 2009
ORDER
Plaintiff Clarence Roach, who is confined in the California Substance Abuse Treatment Facility in Corcoran, California, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1). This case was reassigned to the undersigned judge on November 25, 2008.
By Order filed February 17, 2009, the Court dismissed the Complaint with leave to amend. On February 27, 2009, Plaintiff filed a "Motion to Stop Complaint for Reasons of Premature Submission to the District Court Pursuant to the Prison Litigation Reform Act" (Doc. #18).
In his Motion, Plaintiff states that he was not aware that he was required to exhaust administrative remedies before filing a complaint and asks that the court "allow Plaintiff[']s complaint to be set aside in the interest of leniency. . . ." The Court will construe Plaintiff's request as Motion for Voluntary Dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. Rule 41(a)(i) provides that a plaintiff may dismiss an action by filing a "notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Because Defendants have not been served and therefore have not filed an answer or motion for summary judgment, the Court will grant the motion for dismissal. The dismissal will be without prejudice and Plaintiff may re-file his claims, in a new action, after he has exhausted administrative remedies.
IT IS THEREFORE ORDERED that Plaintiff's "Motion to Stop Complaint" (Doc. #18) which the Court construes as a Motion for Voluntary Dismissal, is granted. This action is dismissed without prejudice and the Clerk of Court must enter judgment accordingly.