Jones v. Phifer

Full title: JEREMY JONES, Petitioner, v. PHIFER, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Dec 9, 2020

Case No. 1:20-cv-00755-DAD-EPG-HC (E.D. Cal. Dec. 9, 2020)

Opinion

Case No. 1:20-cv-00755-DAD-EPG-HC

12-09-2020

JEREMY JONES, Petitioner, v. PHIFER, Respondent.

ORDER TERMINATING PETITIONER'S REQUEST TO WITHDRAW WRIT ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER A PRISONER CIVIL RIGHTS COMPLAINT FORM AND TO CLOSE CASE (ECF No. 12)

Petitioner Jeremy Jones is proceeding pro se with a petition for writ of mandamus and request for emergency injunctive relief. On July 15, 2020, the Magistrate Judge issued findings and recommendation recommending dismissal of the petition for lack of jurisdiction. (ECF No. 5).

On December 7, 2020, the Court received the instant request to withdraw the petition for writ of mandate with leave to refile under 42 U.S.C. § 1983. (ECF No. 12). The Court construes the request as a notice of dismissal. See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to "create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis"); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally).

Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, "the plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(i). Voluntary dismissal under this rule grants a plaintiff an absolute right to dismiss without prejudice, requires no action on the part of the court, and divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)).

In this case, Respondent has not served either an answer or a motion for summary judgment. Thus, Petitioner's request of dismissal was effective upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). For the sake of clarity, in light of the notice of dismissal, IT IS HEREBY ORDERED that:

1. Petitioner's request to withdraw writ (ECF No. 12) is TERMINATED; and

2. The Clerk of the Court is DIRECTED to send Petitioner a prisoner civil rights complaint form and to CLOSE the case.

IT IS SO ORDERED.

Dated: December 9 , 2020

/s/_________

UNITED STATES MAGISTRATE JUDGE