Opinion
Case No. EDCV 13-803-UA (OP)
08-05-2013
SCOTT WILLIAMS, Plaintiff, v. LINDA SANDERS, et al., Defendants.
ORDER RE: VOLUNTARY
DISMISSAL OF CIVIL RIGHTS
COMPLAINT PURSUANT TO FED. R.
CIV. P. 41
I.
PROCEEDINGS
On April 30, 2013, Scott Williams ("Plaintiff") lodged for filing what purported to be a Civil Rights Complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) ("Complaint"), along with an in forma pauperis application in order to proceed without payment of the full filing fee and a motion for a temporary restraining order/preliminary injunction. (ECF No. 1.) Because Plaintiff requested leave to proceed in forma pauperis, the Court screened the Complaint for the purpose of determining whether the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A.
On May 9, 2013, the Court issued an Order to Show Cause ("OSC") why the in forma pauperis application should not be denied. (ECF No. 2.) Specifically, the Court found that to the extent Plaintiff was alleging constitutional claims against the Federal Bureau of Prisons and FCI Terminal Island, the Complaint was subject to dismissal based on sovereign immunity. The Court further found that the Complaint was subject to dismissal for failure to state an Eighth Amendment claim based on deliberate indifference to serious medical needs. (Id. at 4-7.) The Court gave Plaintiff until June 14, 2013, to show cause why his in forma pauperis application should not be denied. Plaintiff was instructed that if he wished to pursue this action, he had until June 14, 2013, to file an amended Complaint, attempting to cure the defects in the Complaint. Finally, the Court admonished Plaintiff that the "[f]ailure to comply with these requirements may result in a recommendation that the in forma pauperis application be denied for failure to state a claim on which relief may be granted. The failure to properly respond to this OSC will result in a recommendation that the in forma pauperis application be denied for failure to prosecute and/or failure to comply with a court order." (Id. at 7, 8.)
On July 2, 2013, Plaintiff filed a letter with the Court in which he requested appointment of counsel. If his request for appointment of counsel was to be denied, Plaintiff requested in the alternative a dismissal of the current action without prejudice. (ECF No. 3.) The Court denied Plaintiff's request for appointment of counsel. (ECF No. 4.) The Court construes Plaintiff's alternative request in his letter as a notice of voluntary dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure.
II.
DISCUSSION
Rule 41 of the Federal Rules of Civil Procedure provides that a plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1). Unless otherwise stated in the notice, the dismissal is without prejudice. Id. However, if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. Id.
In his letter, Plaintiff stated that if his request for appointment of counsel was denied, he requested a dismissal of the current action without prejudice. (ECF No. 3.) The Court denied Plaintiff's request for appointment of counsel. (ECF No. 4.) Given that Plaintiff's in forma pauperis application was never granted and that the Complaint was never formally filed, neither an answer nor a motion for summary judgment have been filed by any Defendant. As a result, the Court finds that the dismissal of this action without prejudice and the administrative closure of this matter are warranted. Fed. R. Civ. P. 41(a)(1).
III.
ORDER
IT IS THEREFORE ORDERED that this action is dismissed without prejudice and this matter shall be administratively closed.
____________________
HONORABLE GEORGE H. KING
Chief United States District Judge
Presented by: ____________________
HONORABLE OSWALD PARADA
United States Magistrate Judge