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McCormick v. County of Butte

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


October 14, 2009

MICHAEL JOHN MCCORMICK, PLAINTIFF,
v.
COUNTY OF BUTTE, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the action.

The case was initiated by a pleading filed in this court on August 20, 2009. In his initial pleading, which is entitled "Petition for Writ of Habeas Corpus," plaintiff complains of the conditions of his confinement at the Butte County Jail. He does not challenge a conviction or sentence, but alleges that: (1) he has been denied haircuts; and (2) he should not be required to pay for his confinement. It is also noteworthy that the court captioned on plaintiff's pleading is the Butte County Superior Court and that the pleading bears a "Received" stamp from that court dated August 13, 2009.

On September 1, 2009, the court issued an order directing plaintiff to pay the statutory federal court civil filing fee or submit a completed application for leave to proceed in forma pauperis. In response, plaintiff submitted a letter on September 14, 2009, indicating that he had mailed his pleading for filing in the Butte County Superior Court and that he had never intended to initiate an action in federal court. It is unclear how, if the pleading was sent to the Butte County Superior Court, it ultimately was filed in this court.

Plaintiff makes clear in his September 14, 2009, letter that he does not wish to proceed with this action in federal court. The court, therefore, construes plaintiff's letter as a request for voluntary dismissal. Because no response to the complaint has been filed, leave of court is not required and the action is dismissed on plaintiff's notice. See Fed. R. Civ. P. 41(a)(1)(A)(I). The Clerk of the Court is directed to return to plaintiff his original pleading filed in this case at Doc. 1 and close this file.

IT IS SO ORDERED.


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