Filed: Apr. 18, 2019
Latest Update: Apr. 18, 2019
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff, who is proceeding pro se, has filed an untitled document which has been docketed as a notice of voluntary dismissal. ECF No. 26. I. BACKGROUND Plaintiff filed suit in November 2017 in the Western District of Kentucky. ECF No. 1. The case was transferred to this court, where plaintiff was given leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915, but his initial complaint was dismissed on screening with leave to amend. ECF No
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff, who is proceeding pro se, has filed an untitled document which has been docketed as a notice of voluntary dismissal. ECF No. 26. I. BACKGROUND Plaintiff filed suit in November 2017 in the Western District of Kentucky. ECF No. 1. The case was transferred to this court, where plaintiff was given leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915, but his initial complaint was dismissed on screening with leave to amend. ECF Nos..
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ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, who is proceeding pro se, has filed an untitled document which has been docketed as a notice of voluntary dismissal. ECF No. 26.
I. BACKGROUND
Plaintiff filed suit in November 2017 in the Western District of Kentucky. ECF No. 1. The case was transferred to this court, where plaintiff was given leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, but his initial complaint was dismissed on screening with leave to amend. ECF Nos. 5-7. Plaintiff filed a First Amended Complaint, which stated sufficiently cognizable claims, and the undersigned directed service on defendant. ECF Nos. 8, 9. Defendant was eventually served, and in December 2018 filed a motion to dismiss. ECF Nos. 17, 18. The hearing was re-set for February 20, 2019. ECF No. 21. Plaintiff filed a statement requesting additional time to respond to the motion. ECF No. 22. The court issued a minute order on February 11, 2019, taking the motion under submission and instructing plaintiff to file his opposition by March 20, 2019. ECF No. 23. Plaintiff was cautioned that failure to file an opposition would be considered a statement of non-opposition to dismissal. Id. Plaintiff did not file an opposition or take any other action to prosecute his case. On March 26, 2019, the court issued findings and recommendations, recommending that the action be dismissed without prejudice for lack of prosecution and for failure to comply with the court's orders. ECF No. 25.
II. NOTICE OF VOLUNTARY DISMISSAL
On April 12, 2019, plaintiff filed an untitled document stating as follows:
I deeply regret that I must drop my case. I believed I did have good cause and wished to continue, but what happened was obvious enough to make me understand that I need to stop here. I have had so much stress and anxiety, that I don't believe I can follow through any further. I thought it meant that whether or not I replied it meant that I wished to proceed. To me a sign that I'm too symptomatic to continue. I apologize for wasting the courts time.
ECF No. 26.
The court construes this filing as a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). As defendant has not yet filed either an answer or a motion for summary judgment, it is plaintiff's right to terminate the action. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment, even if the defendant has filed a motion to dismiss).
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's April 12, 2019 filing (ECF No. 26) is construed as a notice of voluntary dismissal without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i);
2. The court's March 26, 2019 findings and recommendations (ECF No. 25) are VACATED;
3. All dates pending before the undersigned are VACATED; and
4. The Clerk of the Court is directed to close the case.
IT IS SO ORDERED.
