(PC) Dalke v. King ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 7 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 8 v. ) RECOMMENDING PLAINTIFF’S MOTION TO DISMISS THIS ACTION 9 KING CLARK, et al., ) ) (ECF No. 103) 10 Defendants. ) ) 11 ) 12 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 13 action pursuant to 42 U.S.C. § 1983. 14 On May 24, 2021, Plaintiff filed a motion to dismiss the instant action. Defendants have not 15 file an opposition and the time to do so has now passed. Local Rule 230(l). 16 Plaintiff previously filed a motion to dismiss on May 12, 2021, which he later retracted from 17 consideration. (ECF Nos. 98, 100, 102.) 18 Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action without 19 a court order by filing: 20 (i) a notice of dismissal before the opposing party serves either an answer or a motion for 21 summary judgment; or 22 (ii) a stipulation of dismissal signed by all parties who have appeared. 23 Fed. R. Civ. P. 41(a)(1)(A). Prior to filing the motion to dismiss, Defendants filed an answer. (ECF 24 No. 75.) Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, 25 Defendants may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii). If Defendants decline to 26 stipulation, the Court may dismiss this action based upon Plaintiff's request, “on terms that the court 27 considers proper.” Fed. R. Civ. P. 41(a)(2). 28 /// 1 In the present motion, Plaintiff submits that he wishes to dismiss this action in the hope that h 2 || will be parole in July 2021. Inasmuch as Plaintiff has continued to litigate this action with several 3 || different filings after the May 24, 2021 request to dismiss, it appears that he does not wish to dismiss 4 this action. Accordingly, Plaintiff's motion for voluntarily dismiss should be denied. 5 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to 6 || voluntarily dismiss this action be denied. 7 This Findings and Recommendation will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 9 || after being served with this Findings and Recommendation, the parties may file written objections 10 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 12 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 13 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IS SO ORDERED. A (Se _ 16 || Dated: _ June 29, 2021 OF 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28