(PC) Kidwell v. Collins

Opinion

SEQUOYAH DESERTHAWK Case No.: 1:22-cv-00709-JLT-CDB (PC) KIDWELL, ORDER REGARDING PLAINTIFF’S Plaintiff, FILING OF JANUARY 8, 2024 AND DIRECTING DEFENDANT’S RESPONSE v. (Doc. 33) JASON COLLINS, et al., SEVEN (7) DAY DEADLINE Defendants.

Plaintiff Sequoyah Deserthawk Kidwell, also known as Jason Scott Harper, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant Aguwa for retaliation in violation of the First Amendment. On December 26, 2023, Defendant filed an answer to Plaintiff’s first amended complaint. (Doc. 31.) On January 8, 2024, Plaintiff filed a document titled “Plaintiffs Response to Answer Plainti[ff] Conce[des] and Request Dismissal of Complaint.” (Doc. 33.) The Court construes Plaintiff’s filing to be a motion for voluntary dismissal pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. // Under Rule 41(a)(1)(A)() of the Federal Rules of Civil Procedure, “‘a plaintiff has an absolute night to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.’” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)G). Federal Rule of Civil Procedure 41(a)(1)(A)(ii1) provides that a “plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared.” Therefore, Plaintiff may dismiss this action by filing a stipulation of dismissal that is signed by all parties who have appeared. However, the motion filed by Plaintiff includes only Plaintiff's signature. A party may also dismiss an action by filing a motion requesting the Court to dismiss the action. Fed. R. Civ. P. 41(a)(2). That rule provides, in relevant part, that “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” 7d. A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982). As noted above, the Court finds that Plaintiff is attempting to file a motion to dismiss this action pursuant to Rule 41(a)(2). Therefore, Defendant will be directed to file an opposition or statement of non-opposition to the motion. Alternatively, Defendant may obtain a stipulation of dismissal that is signed by all parties appearing in this action. Accordingly, within seven (7) days from the date of service of this order, Defendant is DIRECTED to file either: (1) an opposition or statement of non-opposition to Plaintiff's motion to dismiss this action; or (2) a stipulation to dismiss this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Gi), signed by all parties appearing in this action. IT IS SO ORDERED. °° | Dated: _ January 10, 2024 | hr Pr UNITED STATES MAGISTRATE JUDGE