UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 12, 2013
PAM AHLIN, ET. AL,
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER CONSTRUING THE MOTION TO WITHDRAW PETITION AS A VOLUNTARY MOTION TO DISMISS ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS (Doc. 14).
Plaintiff Kenneth Huskey ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. (Docs. 1, 9). Plaintiff consented to proceed before the jurisdiction of the Magistrate Judge on June 27, 2011. (Doc. 8). On March 26, 2013, the Court dismissed Plaintiff's complaint (Doc. 1) and granted Plaintiff twenty-one days in which to file an amended complaint. (Doc. 13).
Plaintiff timely responded to the March 26 Order on April 5, 2013, by filing a motion entitled "Motion to Withdraw Petition." (Doc. 14). Plaintiff reports that he cannot ameliorate the defects of his complaint within the allotted twenty-one day period. Id. at 2. Furthermore, Plaintiff believes that Hydrick v. Hunter*fn1 may properly address his cause of action and it is not necessary to proceed in the present matter. Id. Therefore, the Court construes this motion as a voluntary motion to dismiss.
A plaintiff is entitled to dismiss his litigation without a court
order by filing a notice to dismiss
before any opposing parties appears in the action. Fed. R. Civ. P.
41(1)(A)(i). Plaintiff filed this matter on May 11, 2011. No
defendants have been served. Thus, no defendant has appeared in the
action and Plaintiff is entitled to dismiss his litigation.
Accordingly, the Court HEREBY ORDERS that Plaintiff's motion be DEEMED a voluntary motion to dismiss under Fed. R. Civ. P. 41(1) and that this action is DISMISSED without prejudice.
IT IS SO ORDERED.