(PC) Howell v. Do Canto

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

KAREEM J. HOWELL, 1:19-cv-00854-DAD-GSA-PC

Plaintiff, ORDER GRANTING PLAINTIFF’S

MOTION FOR VOLUNTARY DISMISSAL vs. OF THIS ACTION WITH PREJUDICE

UNDER RULE 41

DO CANTO, et al., (ECF No. 24.)

Defendants. ORDER DISMISSING ACTION IN ITS ENTIRETY WITH PREJUDICE

ORDER DIRECTING CLERK TO CLOSE

FILE

I. BACKGROUND

Kareem J. Howell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 19, 2019. (ECF No. 1.) This case now proceeds against defendant M. Do Canto for retaliation in violation of the First Amendment.1 On January 25, 2021, Plaintiff filed a notice of voluntary dismissal of this case with prejudice. (ECF No. 24.) The court construes Plaintiff’s notice as a motion to voluntarily dismiss this case under Rule 41.

II. RULE 41

Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy On October 14, 2020, the court dismissed all other claims and defendants, based on Plaintiff’s failure to state a claim. (ECF No. 15.)

Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. P. 41(a); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2); Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). In this case, defendant Do Canto filed an Answer on January 4, 2021. (ECF No. 20.) On February 4, 2021, defendant Do Canto consented in writing to Plaintiff’s voluntary dismissal asserting that he will not suffer any plain legal prejudice by dismissal of this action. (ECF No. 26.) Therefore, Plaintiff’s motion to dismiss shall be granted dismissing this action in its entirety, with prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s motion to dismiss this case with prejudice, filed on January 25, 2021, is GRANTED;

2. This action is DISMISSED in its entirety with prejudice; and 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule 41(a).

IT IS SO ORDERED.

Dated: February 5, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE