(PC) Cuellar v. Villalobos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS JUSTIN CUELLAR, Case No. 1:24-cv-01434-KES-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S REQUEST FOR DISMISSAL 13 v. (ECF No. 7) 14 VILLALOBOS, et al., 15 Defendants. 16 17 Plaintiff Travis Justin Cuellar (“Plaintiff”) is a pretrial detainee proceeding pro se in this 18 civil rights action under 42 U.S.C. § 1983. Following Plaintiff’s failure to respond to the Court’s 19 order for Plaintiff file an application to proceed in forma pauperis or pay the filing fee, the 20 undersigned issued findings and recommendations to dismiss this action due to Plaintiff’s failure 21 to obey a court order and failure to prosecute. (ECF Nos. 3, 6.) On February 7, 2025, Plaintiff 22 filed a request for dismissal of this case. (ECF No. 7.) 23 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 24 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 25 Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and 26 citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is 27 required, the parties are left as though no action had been brought, the defendant can’t complain, 28 and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has 1 been served in this action and no defendant has filed an answer or motion for summary 2 judgment. 3 As Plaintiff did not specify whether the dismissal is with or without prejudice, the Court 4 finds that a dismissal without prejudice is appropriate. Fed. R. Civ. P. 41(a)(2). 5 Accordingly, this action is terminated, without prejudice, by operation of law without 6 further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to 7 terminate all pending motions, findings and recommendations, and deadlines, and close this case. 8 IT IS SO ORDERED. 9

10 Dated: February 18, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11

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