IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 26, 2011
DARRYL L. HUBBARD, PLAINTIFF,
C. D. HOUGLAND, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is an inmate at California State Prison-Corcoran, who proceeds without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. On December 10, 2010, the court granted plaintiff's application to proceed in forma pauperis and found that service of process of plaintiff's original complaint was appropriate for all named defendants. On January 3, 2011, plaintiff filed a "Motion to Dismiss" (withdraw) the instant action. (Dkt. No. 13.) However, because plaintiff also filed, on December 20, 2010, a motion to amend his complaint and a proposed First Amended Complaint (Dkt. Nos. 11, 12), the court issued an order requiring plaintiff to clarify his intent.*fn1 After submitting documents necessary to effect service of process on the named defendants (Dkt. No. 15), plaintiff filed, on January 18, 2011, his response in the form of a renewed "Motion to Withdraw" (Dkt. No. 16).
Plaintiff explains in both of his motions to close the instant case that he seeks to devote his efforts to opposing a motion for summary judgment in a "previous" or "old" case. He states that "it is for these reasons that I wish to withdraw from this action, before the complaints have been served on the defendants, to better understand and prepare myself for this summary judgment." (Dkt. No. 16, at 1.)
Federal Rule of Civil Procedure 41 provides that "the plaintiff may dismiss an action without a court order by filing: (i) 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) (emphasis added). Unless otherwise stated in the notice, such dismissals are without prejudice. Fed. R. Civ. P. 41(a)(1)(B).
Defendants have not been served process in this action, and thus plaintiff is entitled unilaterally to dismiss this case. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's "motions" for voluntary dismissal of this action (Dkt. Nos. 13, 16) are "granted;"
2. Plaintiff's motion to amend his complaint (Dkt. No. 11) is denied as moot; and
3. This action is dismissed without prejudice.