(PC) Lipscomb v. Olivas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA JESSIE LIPSCOMB, Case No. 1:21-cv-01127-NONE-BAM (PC)

Plaintiff, ORDER REGARDING PLAINTIFF’S

NOTICE OF VOLUNTARY DISMISSAL v.

(ECF No. 14) OLIVAS, et al.,

Defendants.

Plaintiff Jessie Lipscomb (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On September 23, 2021, the Court screened Plaintiff’s first amended complaint and issued findings and recommendations that the federal claims in this action be dismissed, with prejudice, based on Plaintiff’s failure to state a claim upon which relief may be granted and the Court decline to exercise supplemental jurisdiction over Plaintiff’s purported state law claims. (ECF No. 10.) Those findings and recommendations were served on Plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 10.)

On October 12, 2021, Plaintiff filed a “Motion to Withdrawal.” (ECF No. 11.) The Court issued an order directing Plaintiff to clarify whether he intended to voluntarily dismiss this action, pursuant to Federal Rule of Civil Procedure 41, or whether he merely had no objection to the Court’s findings and recommendations. (ECF No. 12.)

On November 8, 2021, Plaintiff filed a “Motion to Dismiss.” (ECF No. 14.) Plaintiff states that he “has decided to dismiss the 42 U.S.C. § 1983 with prejudice.” (Id.)

“[U]nder Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has been served in this action and no defendant has filed an answer or motion for summary judgment.

Accordingly, this action is terminated, with prejudice, by operation of law without further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to terminate all pending motions and deadlines, assign a District Judge for the purpose of closing this case, and close this case.

IT IS SO ORDERED.

Dated: November 9, 2021 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE