(HC) Jones v. Phifer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JONES, Case No. 1:20-cv-00755-DAD-EPG-HC 12 Petitioner, ORDER TERMINATING PETITIONER’S REQUEST TO WITHDRAW WRIT 13 v. ORDER DIRECTING CLERK OF COURT 14 PHIFER, TO SEND PETITIONER A PRISONER CIVIL RIGHTS COMPLAINT FORM AND 15 Respondent. TO CLOSE CASE 16 (ECF No. 12) 17 18 Petitioner Jeremy Jones is proceeding pro se with a petition for writ of mandamus and 19 request for emergency injunctive relief. On July 15, 2020, the Magistrate Judge issued findings 20 and recommendation recommending dismissal of the petition for lack of jurisdiction. (ECF No. 21 5). 22 On December 7, 2020, the Court received the instant request to withdraw the petition for 23 writ of mandate with leave to refile under 42 U.S.C. § 1983. (ECF No. 12). The Court construes 24 the request as a notice of dismissal. See Castro v. United States, 540 U.S. 375, 381–82 (2003) 25 (courts may recharacterize a pro se motion to “create a better correspondence between the 26 substance of a pro se motion’s claim and its underlying legal basis”); Bernhardt v. Los Angeles 27 County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and 1 Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff 2 | may dismiss an action without a court order by filing . . . a notice of dismissal before the 3 | opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 4 | 41(a)(1)(A)G@). Voluntary dismissal under this rule grants a plaintiff an absolute right to dismiss 5 | without prejudice, requires no action on the part of the court, and divests the court of jurisdiction 6 | upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 7 | F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to 8 | Federal Rule of Civil Procedure 41(a)(1)(A)). 9 In this case, Respondent has not served either an answer or a motion for summary 10 | judgment. Thus, Petitioner’s request of dismissal was effective upon filing and without a court 11 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(). For the sake of clarity, in light 12 | of the notice of dismissal, IT IS HEREBY ORDERED that: 13 1. Petitioner’s request to withdraw writ (ECF No. 12) is TERMINATED; and 14 2. The Clerk of the Court is DIRECTED to send Petitioner a prisoner civil rights 15 complaint form and to CLOSE the case. 16 7 IT IS SO ORDERED. Dated: _ December 9, 2020 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28