Victor Sanchez Alcantar v. Madden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VICTOR SANCHEZ ALCANTAR, Case No.: 23-cv-0036-GPC AGS CDCR #F-25691, 12 ORDER GRANTING MOTION Plaintiff, 13 TO DISMISS PURSUANT TO vs. Fed. R. Civ. P. 41(a) 14 MADDEN; MRS. PAYS; 15 [ECF No. 18] MR. MIRANDA, 16 Defendants. 17 18 19 On September 27, 2022, Plaintiff Victor Sanchez Alcantar, a state prisoner 20 incarcerated at the California State Prison, Sacramento (“CAL-SAC”), proceeding pro se, 21 filed this civil rights action pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a 22 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2) in the Central District of 23 California. 24 On January 5, 2023, Magistrate Judge Shashi H. Kewalramani determined that the 25 events giving rise to the claims in Plaintiff’s Complaint took place at the Richard J. 26 Donovan Correctional Facility (“RJD”) and transferred the matter to this Court. (ECF No. 27 15). However, before this Court could conduct the required sua sponte screening pursuant 28 to 28 U.S.C. Sections 1915(e)(2) and 1915A, Plaintiff filed a “Motion to Dismiss.” (ECF 1 No. 18.) 2 I. Motion to Withdraw and Dismiss 3 Plaintiff has “an absolute right to voluntarily dismiss his action prior to” defendants 4 being served, filing an answer or seeking summary judgment, and “[t]he filing of a notice 5 of voluntary dismissal with the court automatically terminates the action as to the 6 defendants who are the subjects of the notice. Such a dismissal leaves the parties as though 7 no action had been brought.” American Soccer Co., Inc. v. Score First Enterprises, 187 8 F.3d 1108, 1110 (9th Cir. 1999), quoting Wilson v. City of San Jose, 111 F.3d 688, 692 9 (9th Cir. 1997). 10 Plaintiff indicates that he filed this action in error as he had previously filed an 11 action in this Court based on the same set of facts. This previously filed matter is 12 Sanchez v. Payes, S.D. Cal. Civil Case No. 3:22-cv-02067-RBM-LR (“Sanchez I”) and it 13 was filed on December 27, 2022.1 It appears that Plaintiff understood that he had initially 14 filed this action in the wrong district and was attempting to rectify this problem by filing 15 Sanchez I. However, after he filed Sanchez I, the Central District transferred this matter 16 (“Sanchez II”) to this Court. Thus, it appears that Plaintiff did not intend to file 17 duplicative actions in this Court and the Court will GRANT Plaintiff’s Motion and 18 DISMISS this action without prejudice to Plaintiff pursuing Sanchez I. 19 However, the Court also notes that Plaintiff has added two Defendants in this matter 20 that he did not previously name in Sanchez I. Therefore, the Court notes that Plaintiff has 21 the right to amend his pleading once as a matter of course pursuant to Federal Rule of Civil 22 Procedure 15(a)(1). If Plaintiff chooses to amend his pleading in Sanchez I, he must clearly 23 identify S.D. Cal. Civil Case No. 3:22-cv-02067-RBM-LR on the civil rights complaint 24 form and label it as a “First Amended Complaint.” In addition, he is cautioned that an 25 26 1 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial 27 system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 28 1 ||amended complaint must be complete by itself without reference to his original pleading. 2 ||Defendants not named and any claim not re-alleged in his amended complaint will be 3 || considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 4 | & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 5 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 6 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 7 || “considered waived if not repled.”). 8 Thus, because Plaintiff has notified the Court that he does not wish to prosecute his 9 || case at this time, because no party has yet to be served with any valid pleading, and because 10 answer or motion for summary judgment has yet to be filed, voluntary dismissal 11 || pursuant to Fed. R. Civ. P. 41(a)(1)(A)Q) is appropriate. See Hamilton v. Shearson-Lehman 12 ||Am. Exp., Inc., 813 F.2d 1532, 1534-35 (9th Cir. 1987) (“As the rule states, no action by 13 || the court is required for dismissal by notice under Rule 41(a)(1)(i). 14 Conclusion and Order 15 For the reasons explained, Plaintiff's Motion to Dismiss (ECF No. 18), liberally 16 ||construed as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a), is 17 ||GRANTED. This dismissal is without prejudice to Plaintiff pursuing his claims in 18 || Sanchez v. Payes, S.D. Cal. Civil Case No. 3:22-cv-02067-RBM-LR and will not constitute 19 “strike” for 28 U.S.C. Section 1915(g) purposes. 20 The Clerk of Court is directed to dismiss this action and close the file. In addition, 21 Clerk of Court is directed to mail Plaintiff a court approved civil rights complaint form 22 ||for his use in amending in Sanchez v. Payes, S.D. Cal. Civil Case No. 3:22-cv-02067- 23 ||RBM-LR. 24 IT IS SO ORDERED. 25 Dated: February 21, 2023 26 Hon. athe Ck 27 United States District Judge 28