(PC) Howell v. Do Canto ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, 1:19-cv-00854-DAD-GSA-PC 12 Plaintiff, ORDER FOR DEFENDANT PATTERSON, MOLINA, AND FINLEY TO RESPOND TO 13 vs. PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL OF CERTAIN CLAIMS, 14 DO CANTO, et al., WITHIN TWENTY (20) DAYS (Doc. 24) 15 Defendants. 16 17 18 Kareem J. Howell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on June 19, 2019. (ECF No. 1.) This case now proceeds against 21 defendant M. Do Canto for retaliation in violation of the First Amendment.1 22 On January 25, 2021, Plaintiff filed a notice of voluntary dismissal of this case. (ECF 23 No. 24.) Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or 24 all of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy 25 Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a 26 motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary 27 28 1 On October 14, 2020, the court dismissed all other claims and defendants, based on Plaintiff’s failure to state a claim. (ECF No. 15.) 1 dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. P. 41(a); 2 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent 3 part: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request 4 only by court order, on terms that the court considers proper. . . . Unless the order states 5 otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2); 6 Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A district court should grant a motion for 7 voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some 8 plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 9 In this case, defendant Do Canto filed an answer on January 4, 2021. (ECF No. 20.) 10 Therefore, defendant Do Canto shall be required to file a response to Plaintiff’s notice of 11 voluntary dismissal indicating whether he will suffer some plain legal prejudice as a result of the 12 dismissal. 13 Accordingly, IT IS HEREBY ORDERED that within twenty (20) days of the date of 14 service of this order, defendant Do Canto shall respond in writing to Plaintiff's notice of voluntary 15 dismissal, indicating whether he will suffer some plain legal prejudice as a result of the dismissal. 16 IT IS SO ORDERED. 17 18 Dated: January 27, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28