Scott v. Yoo

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 BILLIE D. SCOTT, Case No.: 21-cv-1319-MMA (KSC) CDCR #AY-8804, [12] ORDER GRANTING PLAINTIFF’S Plaintiff, 13 MOTION TO VOLUNTARILY v. DISMISS CIVIL ACTION [14] PURUSANT TO FED. R. CIV. P. 41(a) FRANK K. YOO, M.D., TRI CITY [15] MEDICAL CENTER, et al., [Doc. No. 18] [16] Defendants. [19] 20 On July 21, 2021, Billie D. Scott (“Plaintiff”), a state inmate currently incarcerated 21 California Health Care Facility (“CHCF”) and proceeding pro se, filed a civil rights 22 complaint pursuant to 42 U.S.C. § 1983 . See Doc. No. 1. On October 10, 2021, the 23 Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”) and dismissed his 24 Complaint without prejudice and with leave to amend for failure to state a claim pursuant 25 to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b). Doc. No. 6. Plaintiff filed a First 26 Amended Complaint on November 5, 2021. Doc. No. 10. On February 23, 2022, the 27 Court again dismissed the First Amended Complaint without prejudice for failure to state 28 a claim and granted Plaintiff leave to amend. Doc. No. 13. Plaintiff now seeks to 1 voluntarily dismiss his case without prejudice pursuant to Federal Rule of Civil 2 Procedure 41(a), stating that he is unable to satisfy the “deliberate indifference” standard 3 required to state an Eighth Amendment claim. See Doc. No. 18 at 1. 4 Federal Rule of Civil Procedure 41(a)(1)(A) provides that “the plaintiff may 5 dismiss an action without a court order by filing: (i) a notice of dismissal before the 6 opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. 7 P. 41 (a)(1)(A)(i). “The filing of a notice of voluntary dismissal with the court 8 automatically terminates the action as to the defendants who are the subjects of the notice 9 . . . . Such a dismissal leaves the parties as though no action had been brought.” Am. 10 Soccer Co. v. Score First Enterprises, a Div. of Kevlar Indus., 187 F.3d 1108, 1110 (9th 11 Cir. 1999) (citing Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations 12 and footnote omitted)). Thus, because Plaintiff has notified the Court that he does not 13 wish to pursue civil litigation at this time, no party has yet been served with any pleading, 14 and no answer or motion for summary judgment has been filed, voluntary dismissal 15 pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) is appropriate. 16 Plaintiff is cautioned, however, that because he is a prisoner and has brought this 17 civil action IFP pursuant to 28 U.S.C. § 1915 (a), he remains “required to pay the full 18 amount of a filing fee” pursuant to 28 U.S.C. § 1915 (b)(1) and (2). See Doc. No. 8 at 3. 19 Moreover, because the Court has already found his allegations insufficient to state a 20 plausible claim upon which § 1983 relief can be granted, the dismissal is without 21 prejudice except that it may be counted as an additional “strike” against him under 28 22 U.S.C. § 1915 (g) should he remain incarcerated and seek to proceed IFP in future 23 litigation. See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“A prisoner may 24 not avoid incurring strikes simply by declining to take advantage of [an] opportunity to 25 amend.”). “[W]hen (1) a district court dismisses a complaint on the ground that it fails to 26 state a claim, and (2) the court grants leave to amend, and (3) the plaintiff then fails to file 27 an amended complaint, the dismissal counts as a strike under § 1915(g).” Id. 28 Accordingly, the Court GRANTS Plaintiff’s motion and DISMISSES this action 1 |} without prejudice. The Court further DIRECTS the Clerk of the Court to enter a 2 ||judgment of voluntary dismissal without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(4) 3 close the case. 4 IT IS SO ORDERED. 5 Dated: May 11, 2022 6 BWMaituh Wl - /hihter 7 HON. MICHAEL M. ANELLO g United States District Judge