(PC) Hetzel v. Lomeli

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JOSEPH HETZEL, Case No. 1:23-cv-01015-JLT-BAM (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO FILE NOTICE OF VOLUNTARY DISMISSAL OR 13 v. FIRST AMENDED COMPLAINT LOMELI, (ECF No. 7) 15 Defendant. THIRTY (30) DAY DEADLINE 17 Plaintiff Joseph Hetzel (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

19 This action was removed from Kern County Superior Court on July 6, 2023. (ECF No. 1.)

20 The filing fee was paid by Defendant the same date. On July 18, 2023, the Court screened Plaintiff’s complaint and granted Plaintiff leave to file a first amended complaint or a notice of voluntary dismissal. (ECF No. 6.)

23 Currently before the Court is Plaintiff’s “Request for Dismissal of Case and Dismissal of Filing Fees,” filed August 8, 2023. (ECF No. 7.) Plaintiff requests dismissal of this case and dismissal of any filing fees associated with this case, because he did not file a 42 U.S.C. § 1983 case in this court. Rather, this was done without notice to Plaintiff, and without his consent, by the Attorney General’s Office. Plaintiff further states that he filed a writ of mandate in the Superior Court, not a civil rights suit. (Id.) While Defendant has not had an opportunity to file a response to Plaintiff’s request, the Court finds a response is not necessary. The request is deemed submitted. Local Rule 230(l).

3 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “ ‘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 6 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Here, Defendant has not filed an answer or a motion for summary judgment, so Plaintiff may voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)(i).

9 Based on this filing, it is unclear to the Court whether Plaintiff intends to voluntarily dismiss this action, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), or whether Plaintiff is attempting to return this action to the Superior Court. Plaintiff is informed that voluntary dismissal of this action will not result in the return of this case to the Superior Court.

14 With respect to the filing fee for this action, it has already been paid by Defendant.

15 Therefore, Plaintiff’s request for dismissal of the filing fee is denied as moot.

16 Based on the foregoing, the Court finds it appropriate for Plaintiff to file a response to clarify his intent. Plaintiff shall either file a notice of voluntary dismissal of this action, which will also result in the dismissal of the claims Plaintiff originally filed in Superior Court, or Plaintiff may file a first amended complaint in compliance with the Court’s July 18, 2023 screening order. Finally, the Court finds that Defendant will not be prejudiced by the brief extension granted here.

22 Accordingly, IT IS HEREBY ORDERED as follows: 23 1. Within thirty (30) days from the date of service of this order, Plaintiff shall file one of the 24 following: 25 a. A notice of voluntary dismissal of this action pursuant to Federal Rule of Civil 26 Procedure 41(a)(1)(A)(i); or 27 b. A first amended complaint curing the deficiencies identified by the Court’s July 28 18, 2023 screening order, (ECF No. 6); and 1 2. If Plaintiff fails to file a response in compliance with this order, the Court will 2 recommend dismissal of this action, with prejudice, for failure to comply with a 3 Court order and failure to state a claim.

IT IS SO ORDERED.

6 Dated: August 8, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE