UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 18, 2013
JOHN CHOKATOS, ET. AL, DEFENDANTS.
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER CONSTRUING THE MOTION TO WITHDRAW WITHOUT PREJUDICE AS A VOLUNTARY MOTION TO DISMISS ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE (Doc. 13).
Plaintiff Antonio Franco ("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, 4). Plaintiff consented to proceed before the jurisdiction of the Magistrate Judge on July 11, 2011. (Doc. 5). 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. 12).
Plaintiff timely responded to the March 26 Order on April 15, 2013, by filing a motion entitled "Motion for Dismissal Without Prejudice." (Doc. 13). Given his continued incarceration and "and still being in a wheelchair," Plaintiff indicates that litigation presents significant physical difficulty. Id. He requests that that the Court dismiss this matter in its entirety without prejudice. 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 July 1, 2011. No defendants have been served. Thus, no defendant has appeared in the 2 action and Plaintiff is entitled to dismiss his litigation. 3
Accordingly, the Court HEREBY ORDERS that Plaintiff's motion be DEEMED a voluntary 4 motion to dismiss under Fed. R. Civ. P. 41(1) and that this action is DISMISSED without prejudice. 5 6
IT IS SO ORDERED. 7
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