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Frank E. Sisneroz v. Wittman

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 19, 2011

FRANK E. SISNEROZ,
PLAINTIFF,
v.
WITTMAN, ET AL.,
DEFENDANTS.

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

ORDER FOR DEFENDANT TULARE COUNTY MENTAL HEALTH SERVICES TO RESPOND TO PLAINTIFF'S MOTION TO DISMISS WITHIN THIRTY DAYS (Doc. 68.)

I. BACKGROUND

Plaintiff Frank E. Sisneroz ("Plaintiff") is a civil detainee proceeding pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now proceeds on the Second Amended Complaint filed on May 12, 2008 and the Supplemental Complaint filed on June 1, 2009, against defendants Bill Whitman, the County of Tulare,*fn1 Thomas F. Johnson, and Tulare County Mental Health Services.*fn2 (Docs. 34, 47.)

On September 21, 2011, the Court issued an order for Plaintiff to show cause why defendant Johnson should not be dismissed from this action based on Plaintiff's failure to provide information sufficient to effect service. (Doc. 64.) On October 17, 2011, Plaintiff filed a motion to dismiss defendant Johnson from this action. (Doc. 68.) On October 19, 2011, defendants County of Tulare and Bill Wittman filed a statement of non-opposition to Plaintiff's motion to dismiss. (Doc. 69.)

II. RULE 41

Plaintiff requests that defendant Johnson be dismissed from this action. Under Rule 41 of the Federal Rules of Civil Procedure, "the plaintiff may dismiss an action [against a defendant] 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 County of Tulare and Bill Wittman filed an answer to the complaint on August 26, 2011, and defendant Tulare County Mental Health Services appeared by filing a notice of consent to Magistrate Judge jurisdiction on October 26, 2011. (Docs. 59, 65.) Before Plaintiff can dismiss defendant Johnson from this action pursuant to Rule 41, defendant Tulare County Mental Health Services must consent in writing to the dismissal. This defendant 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, defendant Tulare County Mental Health Services shall respond in writing to Plaintiff's motion to dismiss of October 17, 2011, indicating whether the defendant consents to the dismissal of defendant Johnson, or whether the defendant has any reason to oppose the dismissal.

IT IS SO ORDERED.


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