(PC) Camposeco v. Stamper ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL CAMPOSECO, Case No. 1:19-cv-01330-BAM (PC) 12 Plaintiff, ORDER DIRECTING DEFENDANTS TO RESPOND TO PLAINTIFF’S MOTION TO 13 v. DISMISS SUIT 14 STAMPER, et al., (ECF No. 58) 15 Defendants. SEVEN (7) DAY DEADLINE 16 17 Plaintiff Samuel Camposeco (“Plaintiff”) is a pretrial detainee proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s second amended complaint against Defendants Stamper and Jones for violation of the 20 First and Sixth Amendments for reading Plaintiff’s legal mail outside of Plaintiff’s presence on 21 August 19, 2019. All parties have consented to Magistrate Judge jurisdiction. (ECF No. 51.) 22 Currently before the Court is Plaintiff’s Motion to Dismiss Suit Based on Stipulations by 23 Both Parties, filed May 10, 2022. (ECF No. 58.) Plaintiff states that he moves the Court for 24 dismissal of this action and all parties thereof following discussions with Defendants’ counsel. 25 The motion is signed by Plaintiff only. (Id.) 26 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an 27 action without a court order by filing a stipulation of dismissal signed by all parties who have 28 appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing a 1 stipulation of dismissal that is signed by all parties who have appeared. However, the motion 2 includes only Plaintiff’s signature. 3 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 4 action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 5 addressed to the sound discretion of the district court. Hamilton v. Fireston Tire & Rubber Co. 6 Inc., 679 F.2d 143, 145 (9th Cir. 1982). 7 The Court finds that Plaintiff is attempting to file a motion to dismiss this action pursuant 8 to Rule 41(a)(2). Therefore, Defendants are directed to file an opposition or statement of non- 9 opposition to the motion. Alternatively, Defendants may obtain a stipulation of dismissal that is 10 signed by all parties appearing in this action. Any stipulation should specify whether this 11 action will be dismissed with or without prejudice. 12 Accordingly, within seven (7) days from the date of service of this order, Defendants are 13 DIRECTED to file either: 14 1. An opposition or statement of non-opposition to Plaintiff’s motion to dismiss this action; 15 or 16 2. A stipulation to dismiss this action pursuant to Federal Rule of Civil Procedure 17 41(a)(1)(A)(ii), signed by all parties appearing in this action. 18 IT IS SO ORDERED. 19 20 Dated: May 11, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28