1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMIE STEPHENS, Case No. 2:22-cv-00330-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 PRIMM, et al., 15 Defendants. 16 17 On October 12, 2022, the court denied plaintiff’s application to proceed in forma pauperis 18 under the so-called “three strikes” rule of

(g) and ordered him to pay the full 19 filing fee within fourteen days. ECF No. 11. Instead of paying the filing fee, plaintiff filed a 20 motion for reconsideration, ECF No. 12, which the court granted, ECF No. 14. On December 12, 21 2022, the court declined to revisit its prior decision denying plaintiff’s application to proceed in 22 forma pauperis. ECF No. 18. Shortly thereafter, plaintiff appealed the court’s December 12 23 order to the Court of Appeals for the Ninth Circuit. ECF No. 21. On July 19, 2023, the Court of 24 Appeals dismissed plaintiff’s appeal, citing his failure to prosecute. The mandate issued on 25 August 9, 2023. See ECF No. 24. Given the posture of this case, I will extend the deadline for 26 plaintiff to pay the filing fee. 27 Plaintiff has also filed a motion styled as a motion to dismiss. ECF No. 16. In the 28 motion, plaintiff seeks to voluntarily dismiss defendant A. Espinoza without prejudice. “It is well 1 | settled that under Rule 41(a)(1)@), ‘a plaintiff has an absolute right to voluntarily dismiss his 2 | action prior to service by the defendant of an answer or a motion for summary judgment.’” Com. 3 | Space Mgmt. Co. v. Boeing Co.,

, 1077 (9th Cir. 1999) (citing Wilson v. City of San 4 | Jose,

(9th Cir. 1997)). “[A] dismissal under Rule 41(a)(1) is effective on 5 | filing, no court order is required, the parties are left as though no action had been brought, the 6 | defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” Com. 7 | Space Memt. Co., 193 F.3d at 1078. In this case, no defendant has filed an answer or motion for 8 | summary judgment. Therefore, plaintiff's notice of dismissal is effective and defendant Espinoza 9 | is dismissed by operation of law without prejudice. 10 Accordingly, it is hereby ORDERED that: 11 1. Plaintiff’s motion to voluntarily dismiss defendant A. Espinoza, ECF No. 16, is 12 | granted. Defendant Espinoza is voluntarily dismissed without prejudice pursuant to Federal Rule 13 | of Civil Procedure 41(a)(1)(A)@), and the Clerk of Court is directed to update the docket 14 | accordingly. 15 2. Plaintiff shall pay the $402 filing fee in full by August 24, 2023. 16 3. Failure to comply with this order will result in a recommend that this action be 17 || dismissed. 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ August 9, 2023 a——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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