Yang v. Boudreaux

Opinion

PHENG YANG, Case No. 1:21-cv-00148-BAM Plaintiff, ORDER RE NOTICE OF NON-FILING AMENDED COMPLAINT AND REQUEST v. FOR CASE TERMINATION MIKE BOUDREAUX, et al., (Doc. 32) Defendants. Plaintiff Pheng Yang initiated this civil rights action pursuant to 42 U.S.C. § 1983 on February 4, 2021. (Doc. 1.) On June 14, 2021, Defendants Tulare County, Sheriff Mike Boudreaux, and Deputies Matthew Williams, Hector S. Hernandez, Jr., Jason Henderson, Ryan Pugh, and Derrick Hood (“Defendants”) moved to dismiss Plaintiff’s first amended complaint. (Doc. 18.) On September 7, 2021, the Court granted Defendants’ motion to dismiss Plaintiff’s first amended complaint with leave to amend all claims and dismissed Defendant Sheriff Mike Boudreaux, in his official capacity, without leave to amend. (Doc. 30.) The Court directed Plaintiff to file any amended complaint or notify the Court of his intention not to proceed with this action within thirty (30) days of service. (Id. at 29.) On October 12, 2021, Plaintiff, through counsel, filed a Notice of Non-Filing Amended Complaint. (Doc. 32.) According to the notice, Plaintiff does not intend to file an Amended Complaint and counsel requests “that this case be terminated as Plaintiff will not be filing an Amended Complaint.” (Id. at 1.) The Court construes Plaintiff’s notice and accompanying request as a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Under Rule 41(a)(1)(A)(i), “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.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “[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.” Id. at 1078. No defendant has filed an answer or a motion for summary judgment in this action. Accordingly, this action is terminated by operation of law without further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is DIRECTED to terminate all pending motions and deadlines and to CLOSE THIS CASE. IT IS SO ORDERED.

Dated: October 13, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE