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Singleton v. Hedgepath

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


April 15, 2010

KELVIN X. SINGLETON, PLAINTIFF,
v.
A. HEDGEPATH, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER FOR DEFENDANTS ALI, AKANNO, LOPEZ AND YOUSSEF TO RESPOND TO PLAINTIFF'S MOTION TO DISMISS WITHIN THIRTY DAYS (Doc. 51.)

I. BACKGROUND

Plaintiff Kelvin X. Singleton ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint on January 18, 2008. (Doc. 1.) This case now proceeds on the Second Amended Complaint, filed on February 12, 2009, against defendants CMO A. Youssef, CMO S. Lopez, Dr. J. Akanno, Dr. S. Qamar, Dr. Vasquez, RN II M. Ali, and RN II M. Wright-Pearson for deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment.

(Doc. 26.) On April 8, 2010, plaintiff filed a motion to dismiss defendant Dr. J. Akanno from this action. (Doc. 51.)

II. RULE 41

Under Rule 41 of the Federal Rules of Civil Procedure, "the 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; or a stipulation of dismissal signed by all parties who have appeared." Fed.R.Civ.P. 41(a)(1)(A). In this case, defendants Ali, Akanno, Lopez and Youssef filed an answer to the Second Amended Complaint on March 30, 2010. (Doc. 45.) No other parties have appeared in this action. Therefore, before plaintiff can dismiss defendant Akanno, defendants Ali, Akanno, Lopez and Youssef must consent in writing to the dismissal. Defendants shall be required to respond in writing to plaintiff's motion to dismiss.

III. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of service of this order, defendants Ali, Akanno, Lopez and Youssef shall respond in writing to plaintiff's motion to dismiss, indicating whether they consent to the dismissal of defendant Akanno, or whether they have any reason to oppose the dismissal.

IT IS SO ORDERED.

20100415

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