(PC) Cone v. Lopez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRIS MONROE CONE, Case No. 1:25-cv-00669-KES-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S MOTION TO DISMISS 13 v. (ECF No. 15) 14 LOPEZ, 15 Defendant. 16 17 Plaintiff Chris Monroe Cone (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds against 19 Defendant Lopez for excessive force in violation of the Eighth Amendment for the incident on 20 August 28, 2024. 21 On June 26, 2025, the Court issued an order for Plaintiff to show cause why Defendant 22 Lopez should not be dismissed from this action after the U.S. Marshal was unable to locate the 23 defendant for service of process. (ECF No. 14.) 24 In response, Plaintiff filed a Motion to Dismiss. (ECF No. 15.) Plaintiff states that he 25 does not know any personal identifiable information about the Corcoran SATF prison guard who 26 on video body slammed Plaintiff without cause. Plaintiff notes that the guard should be easily 27 identifiable by watching the body camera footage and argues that this case is still evidence of 28 physical, mental, and emotional injuries suffered related to his other pending action. 1 Nevertheless, Plaintiff apologizes for the lack of identification of the guard and requests that the 2 case be dismissed. (Id.) 3 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 4 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 5 Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and 6 citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is 7 required, the parties are left as though no action had been brought, the defendant can’t complain, 8 and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has 9 been served in this action and no defendant has filed an answer or motion for summary 10 judgment. 11 Accordingly, this action is terminated, without prejudice, by operation of law without 12 further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to 13 terminate all pending motions and close this case. 14 IT IS SO ORDERED. 15

16 Dated: July 15, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17

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