(PC) Rael v. Zepp ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SILVESTRE RAEL, Case No. 1:21-cv-00810-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT PLAINTIFF’S v. 13 MOTION TO DISMISS BE GRANTED ANDREW ZEPP, et al., 14 (ECF No. 5) Defendants. 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 Silvestre Rael (“Plaintiff”) is a state prisoner proceeding pro se in this action. Plaintiff 20 filed the complaint commencing this action on May 19, 2021. (ECF No. 1). Plaintiff did not 21 file an application to proceed in forma pauperis. Additionally, it appears that Plaintiff did not 22 intend to file this action in federal court. Accordingly, on May 21, 2021, the Court issued an 23 order, directing Plaintiff to “either: 1) submit the attached application to proceed in forma 24 pauperis, completed and signed, or in the alternative, pay the $402.00 filing fee for this action; 25 or 2) file a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 26 41(a)(1)(A)(i).” (ECF No. 4, p. 2). 27 On June 11, 2021, Plaintiff filed a motion to dismiss. (ECF No. 5). Plaintiff moves to 28 voluntarily dismiss this action because it was incorrectly filed in the wrong jurisdiction. 1 As Plaintiff filed a motion instead of a notice, the Court will treat Plaintiff's motion as a 2 || motion to dismiss under Federal Rule of Civil Procedure 41(a)(2). 3 “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's 4 || request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). 5 Given that this case is still at the screening stage, and given Plaintiffs representation 6 || that he filed this action in the wrong jurisdiction, the Court finds that Plaintiff's motion to 7 || dismiss should be granted and that this action should be dismissed without prejudice to Plaintiff 8 || filing this action in state court. 9 Accordingly, the Court HEREBY RECOMMENDS that: 10 1. This action be dismissed, without prejudice to Plaintiff filing this action in state 11 court; and 12 2. The Clerk of Court be directed to close this case. 13 These findings and recommendations will be submitted to the United States district 14 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 15 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 16 || file written objections with the Court. The document should be captioned “Objections to 17 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 |} (9th Cir. 1991)). 21 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 22 || judge to this case. 3 IT IS SO ORDERED. 7411 Dated: _ June 14, 2021 [Je hey 25 UNITED STATES MAGISTRATE JUDGE 26 27 28