(PC) Stephens v. Primm

Opinion

JIMMIE STEPHENS, Case No. 2:22-cv-00330-KJM-JDP (PC) Plaintiff, v. ORDER PRIMM, et al., Defendants. On October 12, 2022, the court denied plaintiff’s application to proceed in forma pauperis under the so-called “three strikes” rule of 28 U.S.C. § 1915(g) and ordered him to pay the full filing fee within fourteen days. ECF No. 11. Instead of paying the filing fee, plaintiff filed a motion for reconsideration, ECF No. 12, which the court granted, ECF No. 14. On December 12, 2022, the court declined to revisit its prior decision denying plaintiff’s application to proceed in forma pauperis. ECF No. 18. Shortly thereafter, plaintiff appealed the court’s December 12 order to the Court of Appeals for the Ninth Circuit. ECF No. 21. On July 19, 2023, the Court of Appeals dismissed plaintiff’s appeal, citing his failure to prosecute. The mandate issued on August 9, 2023. See ECF No. 24. Given the posture of this case, I will extend the deadline for plaintiff to pay the filing fee. Plaintiff has also filed a motion styled as a motion to dismiss. ECF No. 16. In the motion, plaintiff seeks to voluntarily dismiss defendant A. Espinoza without prejudice. “It is well settled that under Rule 41(a)(1)@), ‘a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.’” Com. Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999) (citing Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” Com. Space Memt. Co., 193 F.3d at 1078. In this case, no defendant has filed an answer or motion for summary judgment. Therefore, plaintiff's notice of dismissal is effective and defendant Espinoza is dismissed by operation of law without prejudice. Accordingly, it is hereby ORDERED that: 1. Plaintiff’s motion to voluntarily dismiss defendant A. Espinoza, ECF No. 16, is granted. Defendant Espinoza is voluntarily dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)@), and the Clerk of Court is directed to update the docket accordingly. 2. Plaintiff shall pay the $402 filing fee in full by August 24, 2023. 3. Failure to comply with this order will result in a recommend that this action be dismissed. ( q Sty — Dated: _ August 9, 2023 a——— JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE