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Harper v. Humphreys

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 24, 2009

DANIEL HARPER, PLAINTIFF,
v.
HUMPHREYS, ET AL., DEFENDANTS.

ORDER

Plaintiff is a prisoner without counsel in an action brought under 42 U.S.C. § 1983. On February 17, 2009, plaintiff filed documents entitled first request for production of documents. Interrogatories, requests for production, requests for admission, responses and proofs of service thereof "shall not be filed with the clerk until there is a proceeding in which the document or proof of service is at issue. When required in a proceeding, only that part of the request and response that is in issue shall be filed." Local Rules 33-250(c), 34-250(c) & 36- 250(c). This is the third time the court has had to advise plaintiff of these rules. See Nov. 12, 2008 Order, Nov. 29, 2007 Order. If and when a discovery and scheduling order is issued, it will advise the parties as to when they may conduct discovery.

Additionally, on February 17, 2009, plaintiff requested that the court "relieve" defendant Humphreys from this action. The court construes plaintiff's filing as a notice of voluntary dismissal of defendant Humphreys, who has not yet been served with process. See Fed. R. Civ. P. 41(a). Subject to exceptions not applicable here, a plaintiff may voluntarily 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)(A)(I).

Accordingly, it is ORDERED that:

1. Plaintiff's February 17, 2009 first request for production of documents is stricken and the Clerk of the Court shall make a notation on the docket to that effect; and

2. Defendant Humphreys is dismissed from this action without prejudice pursuant to Rule 41(a)(1)(A)(I).

20090224

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