Opinion
No. CV 10-8279-JHN (PLA)
11-14-2011
DANIEL TREBAS, Plaintiff, v. MICHAEL FERGUSON, et aL, Defendants.
ORDER DISMISSING ACTION WITHOUT
PREJUDICE
Plaintiff, who has been civilly committed to the custody of the California Department of Mental Health and housed at Atascadero State Hospital pursuant to California's Mentally Disordered Offenders Act, Cal. Penal Code §§ 2960, et seq., filed a pro se civil rights action in this Court on November 10, 2010, after being granted leave to proceed in forma pauperis. On November 24, 2010, the Magistrate Judge dismissed plaintiff's Complaint with leave to amend. On December 17, 2010, plaintiff filed a First Amended Complaint ("FAC"). On February 1, 2011, the Magistrate Judge dismissed plaintiff's FAC with leave to amend and gave plaintiff until no later than March 1, 2011, to file a Second Amended Complaint remedying the deficiencies of the FAC. Thereafter, plaintiff filed an appeal to the Ninth Circuit Court of Appeals, which was dismissed for lack of jurisdiction, as well as a Motion for District Judge Intervention, which was denied on July 13, 2011. Following an extension of time, plaintiff filed a Second Amended Complaint ("SAC") on August 1, 2011.
On August 22, 2011, the Magistrate Judge dismissed the SAC with leave to amend, finding that plaintiff's allegations as set forth in the SAC remained insufficient to state a federal civil rights claim against any defendant. In the Magistrate Judge's Order of August 22, 2011, plaintiff was given until September 22, 2011, to file a Third Amended Complaint that remedied the deficiencies of his SAC. As of October 13, 2011, when plaintiff still had not filed a Third Amended Complaint, the Magistrate Judge issued an Order to Show Cause why plaintiff's Second Amended Complaint should not be dismissed for failure to state a claim and failure to prosecute, and advised plaintiff that his failure to timely file a Third Amended Complaint would result in a recommendation for dismissal of the SAC.
In response to the Order of October 13, 2011, plaintiff has now submitted a letter stating that he is "withdrawing the complaint." After an action has been filed, a plaintiff may, under certain circumstances, obtain a voluntary dismissal of the action. Fed.R.Civ.P. 41(a)(1). The Court construes plaintiff's unequivocal request to withdraw his operative complaint in this action as a request that this action be dismissed without prejudice. Accordingly, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, which allows a plaintiff to dismiss an action without order of the Court by filing a notice of dismissal at any time before service by the opposing party of a responsive pleading (which is the situation here), it is hereby ordered that the instant action is dismissed without prejudice.
HONORABLE JACQUELINE H. NGUYEN
UNITED STATES DISTRICT JUDGE