(PC) Lewis v. Newsome ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARONTA TYRONE LEWIS, Case No. 1:22-cv-01036-ADA-HBK (PC) 12 Plaintiff, NOTICE OF VOLUNTARILY DISMISSAL UNDER RULE 41(a)(1)(A)(i) 13 v. (Doc. No. 8) 14 GAVIN NEWSOME, ET. AL., 15 Defendants. 16 17 Pending before the Court is Plaintiff’s pleading titled “motion to withdraw federal civil 18 rights action without prejudice” filed on October 27, 2022. (Doc. No. 8). On October 12, 2022, 19 the undersigned issued Findings and Recommendations to the district court to deny Plaintiff’s 20 motion for leave to proceed in forma pauperis under § 1915(g) due to Plaintiff’s three-striker and 21 his failure to establish the imminent danger of physical injury exception. (Doc. No. 7). In 22 response, Plaintiff filed the instant pleading asking the Court “to grant [this motion ] without 23 prejudice” because Plaintiff seeks to “have an attorney refile [it].” (Doc. No. 8 at 2). 24 Here, no Defendant has been served, or filed a response or motion for summary judgment 25 and Plaintiff seeks dismissal, without prejudice, of this action. The Court construes the pleading 26 as a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i). See Castro 27 v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to “create 28 1 | a better correspondence between the substance of a pro se motion’s claim and its underlying legal 2 basis”); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to ; construe pro se pleadings and motions liberally). Considering Plaintiff's request for dismissal without prejudice, this case is dismissed with prejudice by operation of law without further order 6 by the Court. See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (noting a plaintiff 7 | has an absolute right to dismiss a case, prior to defendant serving an answer or motion for summary 8 || judgment, which is effective upon notice, without court order). 9 Accordingly, Plaintiff's pleading titled “motion to withdraw federal civil rights action 10 without prejudice” (Doc. No. 8) is construed as a notice under Rule 41. The Clerk of the Court shall terminate all deadlines and motions and CLOSE THIS CASE to reflect Plaintiffs voluntary dismissal without prejudice under Rule 41(a)(1)(A)Q). 14 15 Dated: _ October 28, 2022 Kobo Zh fare Hack 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28