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Tombs v. MacCufs

United States District Court, Ninth Circuit

September 20, 2013

LARRY E. TOMBS, Plaintiff,
v.
MARION MACCUFS, et al., Defendants.

ORDER

EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. ยง 1983. On September 18, 2013, plaintiff informed the court that he filed this action by mistake, and that he wishes to proceed instead in case No. 2:13-cv-1393-JAM-CKD P. ECF No. 6. He states he does not know how the mistake happened, but indicates he has been having "problems" with the mail. Id.

The court construes plaintiff's filing as a notice of voluntary dismissal made pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), which deprives this court of jurisdiction over the action. See Fed.R.Civ.P. 41(a)(1)(A) ("[T]he 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...."); see also Fed.R.Civ.P. 41(a)(1)(B) ("Unless the notice [of dismissal] states otherwise, the dismissal is without prejudice."). Dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction once the notice of voluntary dismissal is filed. See, e.g., United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008). In light of that dismissal, the Clerk of Court is directed to close this case.[1]

SO ORDERED.


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