(PC) Montgomery v. Chief Medical Office, No. 2:2009cv02705 - Document 18 (E.D. Cal. 2010)

Court Description: ORDER signed by Magistrate Judge Dale A. Drozd on 10/20/10 ORDERING that 16 FINDINGS AND RECOMMENDATIONS are VACATED; and this action is dismissed. (Dillon, M)
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(PC) Montgomery v. Chief Medical Office Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JEROME MONTGOMERY, Plaintiff, 11 vs. 12 13 No. CIV S-09-2705 LKK DAD P CHIEF MEDICAL OFFICE, Defendant. 14 ORDER / 15 On October 13, 2010, plaintiff, a state prisoner proceeding pro se, filed a request 16 17 that this action be dismissed. On October 6, 2010, the court had filed findings and 18 recommendations recommending that this action be dismissed for failure to state a claim. Under 19 Rule 41(a), plaintiff may voluntarily dismiss this action without a court order if the defendant has 20 not served an answer or a motion for summary judgment. Am. Soccer Co. v. Score First Enters., 21 187 F.3d 1108, 1112 (9th Cir. 1999). No answer or motion for summary judgment has been filed 22 on behalf of the defendant in this case. Therefore, pursuant to Fed. R. Civ. P. 41(a), plaintiff's 23 request for voluntary dismissal shall be honored. 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com Accordingly, IT IS HEREBY ORDERED that the findings and recommendations 1 2 filed October 6, 2010 (Doc. No. 16) are vacated and this action is dismissed. 3 DATED: October 20, 2010. 4 5 6 7 DAD:4 mont2705.59 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2