(PC) Smith v. Felker, et al Doc.

38

Case 2:04-cv-01594-LKK-DAD Document 38 Filed 10/20/2005 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 MICHAEL LENIOR SMITH,

11 Plaintiff, No. CIV S-04-1594 LKK DAD P

12 vs.

13 WARDEN T. FELKER, et al.,

14 Defendants. ORDER

15 /

16 Plaintiff is a state prisoner proceeding pro se with this civil rights action. The

17 defendants filed an answer to plaintiff’s complaint on April 1, 2005. Before the court is an

18 untitled document filed October 7, 2005, in which plaintiff states that he is dismissing this case

19 voluntarily.

20 The Federal Rules of Civil Procedure permit a plaintiff to dismiss an action

21 without order of court by filing a notice of dismissal at any time before the defendants serve an

22 answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1). The filing of defendants’

23 answer on April 1, 2005, precludes plaintiff from dismissing this action “save upon order of the

24 court and upon such terms and conditions as the court deems proper.” Fed. R. Civ. P. 41(a)(2).

25 Plaintiff’s filing will be construed as a request for voluntary dismissal pursuant to Rule 41(a)(2),

26 and defendants will be granted an opportunity to respond.

Dockets.Justia.com
 Case 2:04-cv-01594-LKK-DAD Document 38 Filed 10/20/2005 Page 2 of 2

1 Good cause appearing, IT IS HEREBY ORDERED that defendants shall notify

2 the court, within ten court days, whether they have any objection to the dismissal of this action

3 without prejudice. If defendants do not respond within ten court days, plaintiff’s October 7, 2005

4 request for voluntary dismissal will be granted pursuant to Fed. R. Civ. P. 41(a)(2).

5 DATED: October 20, 2005.

8 DAD:13
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