(PC) Howell v. Do Canto ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 KAREEM J. HOWELL, 1:19-cv-00854-DAD-GSA-PC 9 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL 10 vs. OF THIS ACTION WITH PREJUDICE UNDER RULE 41 11 DO CANTO, et al., (ECF No. 24.) 12 Defendants. ORDER DISMISSING ACTION IN ITS ENTIRETY WITH PREJUDICE 13 ORDER DIRECTING CLERK TO CLOSE 14 FILE 15 16 I. BACKGROUND 17 Kareem J. Howell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this action on June 19, 2019. (ECF No. 1.) This case now proceeds against 20 defendant M. Do Canto for retaliation in violation of the First Amendment.1 21 On January 25, 2021, Plaintiff filed a notice of voluntary dismissal of this case with 22 prejudice. (ECF No. 24.) The court construes Plaintiff’s notice as a motion to voluntarily dismiss 23 this case under Rule 41. 24 II. RULE 41 25 Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or 26 all of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy 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 Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a 2 motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary 3 dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. P. 41(a); 4 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent 5 part: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request 6 only by court order, on terms that the court considers proper. . . . Unless the order states 7 otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2); 8 Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A district court should grant a motion for 9 voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some 10 plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 11 In this case, defendant Do Canto filed an Answer on January 4, 2021. (ECF No. 20.) On 12 February 4, 2021, defendant Do Canto consented in writing to Plaintiff’s voluntary dismissal 13 asserting that he will not suffer any plain legal prejudice by dismissal of this action. (ECF No. 14 26.) Therefore, Plaintiff’s motion to dismiss shall be granted dismissing this action in its entirety, 15 with prejudice. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s motion to dismiss this case with prejudice, filed on January 25, 2021, 18 is GRANTED; 19 2. This action is DISMISSED in its entirety with prejudice; and 20 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 21 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 22 IT IS SO ORDERED. 23 24 Dated: February 5, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28