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Canada v. Leauens, 2:15-cv-1827 DB P. (2018)

Court: District Court, E.D. California Number: infdco20181019i55 Visitors: 6
Filed: Oct. 16, 2018
Latest Update: Oct. 16, 2018
Summary: ORDER DEBORAH BARNES , Magistrate Judge . Plaintiff a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief pursuant to 42 U.S.C. 1983. (ECF No. 1). The action was filed on July 29, 2015. On August 20, 2018, defendant filed a motion for an order requiring security. (ECF No. 20). Shortly thereafter, plaintiff filed a notice of voluntary dismissal, and defendant was ordered to notify the court within seven days whether he opposed the dis
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ORDER

Plaintiff a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. (ECF No. 1). The action was filed on July 29, 2015.

On August 20, 2018, defendant filed a motion for an order requiring security. (ECF No. 20). Shortly thereafter, plaintiff filed a notice of voluntary dismissal, and defendant was ordered to notify the court within seven days whether he opposed the dismissal of this action. (ECF Nos. 21, 22). On October 8, 2018, defendant filed a statement of non-opposition to plaintiff's voluntary dismissal of this matter. (ECF No. 23).

Federal Rule of Civil Procedure 41(a) permits a plaintiff to voluntarily dismiss an action. Under Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss an action prior to service by a defendant of an answer or a motion for summary judgment. See Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). Such dismissals are normally done without prejudice. See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citation omitted).

To date, defendant has neither filed an answer in this matter nor a motion for summary judgment. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request to voluntarily dismiss this matter (ECF No. 21) is GRANTED pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i);

2. This matter is DISMISSED without prejudice, and

3. Defendant's motion for an order requiring security (ECF No. 20) is DENIED as moot.

Source:  Leagle

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