(PC) Bunton v. City of Fresno Police Department

Opinion

1 Order 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN KARL RAY BUNTON, Case No. 1:23-cv-00104-HBK (PC) 12 Plaintiff, ORDER DISREGARDING PLAINTIFF’S NOTICE OF DISMISSAL AND SEEKING 13 v. CLARIFICATION 14 Fresno City Police Officer 1, et al., (Doc. No. 28) 15 Defendants. ORDER DIRECTING CLERK OF COURT TO PROVIDE COURTESY COPY OF 16 PLAINTIFF’S MOTION TO AMEND 17 18 Pending before the Court is Plaintiff’s pleading titled “Notice of Change of Address and 19 Motion to Dismiss Without Prejudice,” filed April 2, 2024. (Doc. No. 28). Plaintiff states that 20 when he was transferred between Montana prisons his legal papers were lost, including the names 21 of Doe Defendants that he required to file his Second Amended Complaint. (Id. at 1-2). Plaintiff 22 requests to dismiss his case without prejudice until he can recover the missing information needed 23 to file his Second Amended Complaint (“SAC”). (Id. at 2). 24 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 25 notice of dismissal before the opposing party answers the complaint or moves for summary 26 judgment. Fed. R. Civ. P. 41 (a)(1)(A)(i). Here, no party has answered or moved for summary 27 judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 28 to an answer or motion for summary judgment to dismiss fewer than all named defendants or 1 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). Thus, 2 || Plaintiff may dismiss this action as a right if he so chooses.! 3 A review of the docket, however, reveals that Plaintiff previously filed the missing 4 | information needed to file his Second Amended Complaint with his November 14, 2023 Motion 5 | to Amend. Thus, in an abundance of caution, the Court will direct the Clerk of Court to provide 6 | Plaintiff a courtesy copy of his November 14, 2023 filing so Plaintiff can decide whether he 7 | wishes to voluntarily dismiss this action or file a Second Amended Complaint. 8 Accordingly, the Court ORDERS: 9 1. The Court DISREGARDS Plaintiffs Notice to Dismiss Without Prejudice (Doc. No. 10 28) and seeks clarification as to whether Plaintiff wishes to voluntarily dismiss this 11 action or file a Second Amended Complaint, 12 2. No later than May 8, 2024, Plaintiff shall deliver to correctional officials for mailing, 13 either a “Notice Under Rule 41” if he wishes to voluntarily dismiss this action without 14 prejudice or a “Second Amended Complaint.” 15 3. The Clerk of Court is directed to provide Plaintiff a courtesy copy of his November 16 14, 2023 Motion to Amend (Doc. No. 20) with this Order. 17 4. Plaintiff failure to timely file either a “Notice Under Rule 41” or “Second Amended 18 Complaint” will result in the undesigned recommending the district court dismiss this 19 action without prejudice for Plaintiff’s failure to prosecute this action. 20 | Dated: __April 8, 2024 Mile. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

24 25 26 27 28 | 1A dismissal without prejudice does not toll the applicable statute of limitations.