Garrett v. Diaz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRAIG K. GARRETT, Case No.: 3:19-cv-00510-CAB-MSB CDCR #K-95956, 12 ORDER GRANTING MOTION FOR Plaintiff, 13 VOLUNTARY DISMISSAL vs. PURSUANT TO 14 Fed. R. Civ. P. 41(a) RALPH DIAZ, et al., 15 Defendants. [ECF Nos. 6, 14] 16 17 18 On March 15, 2019, Plaintiff, proceeding pro se and while incarcerated at the 19 Salinas Valley State Prison located in Soledad, California1, filed a civil rights complaint 20 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a motion requesting 21 the appointment of counsel (ECF No. 3) and a motion to proceed in forma pauperis 22 (“IFP”) (ECF No. 2). 23 On May 10, 2019, the Court denied Plaintiff’s motion for appointment of counsel, 24 granted his request for IFP status and dismissed the Complaint for failing to state a claim 25 upon which relief could be granted. (ECF No. 4.) The Court granted Plaintiff 45 days 26 27 1 Plaintiff later filed a notice of change of address and he is currently housed at the California State 28 1 leave to file amended pleading, and directed the Clerk of the Court to provide him with a 2 form for doing so. Id. at 15-16. 3 Instead, on June 3, 2019, Plaintiff filed a “Notice of Intent Not to Amend the 4 Complaint,” along with a “Notice of Appeal” to the Ninth Circuit Court of Appeals. 5 (ECF Nos. 6, 7.) However, the appeal was ultimately dismissed “because the order 6 challenged in the appeal is not final or appealable.” (ECF No. 10.) In addition, on 7 November 19, 2019, Plaintiff filed a “Motion to Obtain Final Judgment.” (ECF No. 14.) 8 This Motion, along with Plaintiff’s “Notice of Intent Not to Amend the Complaint,” the 9 Court will liberally construe as a “Motion for Voluntary Dismissal” pursuant to Fed. R. 10 Civ. P. 41(a). 11 The filing of a notice of voluntary dismissal with the court automatically 12 terminates the action as to the defendants who are the subjects of the notice .... Such a 13 dismissal leaves the parties as though no action had been brought.” American Soccer Co., 14 Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (citing Wilson v. City 15 of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations and footnote omitted)). Thus, 16 because Plaintiff has notified the Court that he does not wish to pursue amendment at this 17 time, no party has yet to be served with any valid pleading, and no answer or motion for 18 summary judgment has yet to be filed, voluntary dismissal pursuant to Fed. R. Civ. P. 19 41(a)(1)(A)(i) is appropriate. See Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 20 1532, 1534–35 (9th Cir. 1987) (“As the rule states, no action by the court is required for 21 dismissal by notice under Rule 41(a)(1)(i). A voluntary dismissal by a plaintiff under this 22 subsection automatically terminates the action upon the filing of the dismissal with the 23 clerk.”). 24 To the extent that Plaintiff also seeks to amend the names of Defendants and 25 include additional exhibits to his original Complaint, this request is DENIED. The Court 26 previously granted Plaintiff leave to file an amended complaint and informed him that his 27 amended complaint “must be complete by itself without reference to his original 28 pleading.” (ECF No. 4 at 16.) He chose not to amend. (See ECF No. 6.) 1 Therefore, should Plaintiff wish to prosecute the claims originally alleged in this 2 ||case, along with his purported amendments, he should file a new and separate civil 3 || action, together with either the $400 civil filing fee required by 28 U.S.C. § 1914(a), or a 4 || Motion to Proceed IFP. 5 Conclusion and Order 6 For the reasons explained, Plaintiff's Motion for Voluntary Dismissal pursuant to 7 || Fed. R. Civ. P. 41(a) (ECF Nos. 6, 14) is GRANTED. 8 The case is DISMISSED without prejudice. 9 IT IS SO ORDERED. 10 ||Dated: December 20, 2019 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3