Dunsmore v. State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-00406-AJB-WVG Inmate Booking No. 19777041, 12 ORDER GRANTING MOTION FOR Plaintiff, 13 VOLUNTARY DISMISSAL vs. 14 15 STATE OF CALIFORNIA; SAN DIEGO 16 COUNTY; SAN DIEGO SHERIFF’S 17 DEP’T; DEPARTMENT OF CORRECTIONS; GORE 18 XAVIER BECCERA; ATTORNEY 19 GENERAL, 20 Defendants. 21 22 23 I. Procedural History 24 On March 2, 2020, Darryl Dunsmore (“Plaintiff”), currently housed at the San 25 Diego Central Jail located in San Diego, California, and proceeding pro se, filed a civil 26 rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition, 27 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (See ECF No. 3.) 1 On April 6, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP and 2 simultaneously DISMISSED his Complaint for failing to state a claim upon which relief 3 could be granted. (See ECF No. 4.) Plaintiff was granted leave to file an amended 4 pleading in order to correct the deficiencies of pleading identified in the Court’s Order. 5 (See id.) 6 On July 1, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF 7 No. 11.) In addition, to his FAC, Plaintiff submitted a declaration from Ken Karan1, an 8 attorney who declares that he personally met with Plaintiff on April 21, 2020. (See id., 9 ECF No. 11 at 18.) Karan declares that Plaintiff asked him to mail an amended pleading 10 in this matter on his behalf and he “personally put the amended complaint in an envelope 11 and mailed it to this Court with first class postage pre-paid” on or about April 22, 2020. 12 (Id.) However, he noted that a review of the Court’s docket indicates that the amended 13 complaint had not been filed. (Id.) 14 On July 17, 2020, Ken Karan submitted a second declaration in which he indicates 15 that he was “wrong” in his previous declaration and in fact, he had not previously mailed 16 Plaintiff’s amended pleading which he recently discovered while “moving file boxes.” 17 (Karan Decl, ECF No. 13 at 1.) Karan attached as an exhibit the “true and correct 18 original of the amended complaint Mr. Dunsmore is attempting to file.” (Id. at 2.) 19 Attached to Karan’s second declaration was also a “Motion for Civil Contempt,” “Motion 20 for Appointment of Counsel,” “Motion for Temporary Restraining Order and Preliminary 21 Injunction,” and “First Amended Complaint.” (Id. at 3-26.) 22 On July 17, 2020, Plaintiff filed a motion to strike the amended complaint filed on 23 July 1, 2020 and requested that the Court file the First Amended Complaint (“FAC”) 24 attached to Karan’s second declaration. The Court GRANTED Plaintiff’s Motion and 25 directed the Clerk of Court to strike the amended complaint filed on July 1, 2020. 26 27 1 Karan has not submitted a substitution of attorney in this matter and thus, it does not appear that Karan 28 1 The Clerk of Court was directed to file Plaintiff’s FAC, see ECF No. 13 at 17-36, 2 Motion for Civil Contempt, see ECF No. 13 at 3-4, Motion for Appointment of Counsel, 3 see ECF No. 13 at 5-6, and Motion for Temporary Restraining Order and Preliminary 4 Injunction, see ECF No. 13 at 7-16, as separate entries in the Court’s docket. 5 On August 4, 2020, the Court DENIED Plaintiff’s Motions for Civil Contempt, 6 Appointment of Counsel, Temporary Restraining Order and Preliminary Injunction. See 7 ECF No. 23. In addition, the Court DISMISSED Plaintiff’s FAC for failing to state a 8 claim upon which relief could be granted. Id. Plaintiff was granted sixty (60) days to file 9 an amended complaint in order to correct the problems of pleading identified in the 10 Court’s Order. See id. 11 Instead of filing an amended complaint, Plaintiff has filed a “motion to stand on his 12 Complaint and for a final order so he may appeal” which the Court liberally construes as 13 a Motion for Voluntary Dismissal pursuant to the Fed.R.Civ.P. 41(a)(1). See ECF No. 29. 14 II. Motion for Final Order 15 The filing of a notice of voluntary dismissal with the court automatically 16 terminates the action as to the defendants who are the subjects of the notice. . . . Such a 17 dismissal leaves the parties as though no action had been brought.” American Soccer Co., 18 Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (citing Wilson v. City 19 of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations and footnote omitted)). Thus, 20 because Plaintiff has notified the Court that he does not wish to pursue this matter at this 21 time, no party has yet to be served with any valid pleading, and no answer or motion for 22 summary judgment has yet to be filed, voluntary dismissal pursuant to Fed. R. Civ. P. 23 41(a)(1)(A)(i) is appropriate. See Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 24 1532, 1534–35 (9th Cir. 1987) (“As the rule states, no action by the court is required for 25 dismissal by notice under Rule 41(a)(1)(i). A voluntary dismissal by a plaintiff under this 26 subsection automatically terminates the action upon the filing of the dismissal with the 27 clerk.”). “[T]he fact that [Plaintiff’s] filing was named as a ‘motion’ does not preclude its 28 operative effect as a notice of dismissal.” Ramirez-Ramos v. Ryan, No. 1 || CV188086PCTNVWJFM, 2019 WL 885624, at *6 (D. Ariz. Jan. 18, 2019), report and 2 || recommendation adopted, 2019 WL 859690 (D. Ariz. Feb. 22, 2019) (“Although the 3 document filed by [plaintiff] was denominated a Motion for Voluntary Dismissal rather 4 a notice of dismissal as specified in Rule 41(a)(1), the Court finds this distinction to 5 || be without legal significance since the effect desired by [plaintiff] in filing the document 6 || with the Court was clearly to have his claims dismissed without prejudice.”’); see also 9 7 || Fed. Prac. & Proc. Civ. § 2363, Voluntary Dismissal—Dismissal as a Matter of Right (3d 8 (‘It is merely a notice and not a motion, although a notice in the form of a motion is 9 || sufficient.”’). 10 Conclusion and Order 11 For the reasons explained, Plaintiff's Motion seeking a final order, ECF No. 29, 12 || construed as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) is 13 |} GRANTED. This civil action also remains DISMISSED for the reasons set forth in 14 || Court’s August 4, 2020 Order. 15 The Clerk of Court is directed to close the file. 16 IT IS SO ORDERED. 17 18 Dated: October 14, 2020 19 Hon, Anthony J Heatia 20 United States District Judge 21 22 23 24 25 26 27 28