REPORT AND RECOMMENDATION NOTED FOR: APRIL 14, 2017
J. RICHARD CREATURA, Magistrate Judge.
Before the Court is plaintiff's motion to voluntarily dismiss his lawsuit. Dkt. 5. Defendants have not yet been served with plaintiff's complaint. See Dkt. The Court recommends granting plaintiff's motion and dismissing this action without prejudice.
Federal Rule of Civil Procedure Rule 41 governs the voluntary dismissal of an action in federal court. Rule 41(a)(1) provides that a 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. In addition, unless the notice or (stipulation signed by all parties that have appeared) states otherwise, the dismissal shall be without prejudice.
Plaintiff filed this action on January 25, 2017. Dkt. 5. On March 8, 2017, the Court granted plaintiff's motion to proceed in forma pauperis. Dkt. 2. On March 10, 2017, the Court ordered plaintiff to show cause why his complaint should not be dismissed for failure to state a claim. Dkt. 4. In response, on March 21, 2017, plaintiff filed a motion to voluntarily dismiss his action. Dkt. 5. Plaintiff asks that the Court to allow him to dismiss his case in this Court in order to return to state court and pursue this action with the Office of Risk Management. Dkt. 5. Defendants have not yet been served with plaintiff's complaint. See Dkt.
Thus, the Court recommends that plaintiff's motion be granted and that the complaint be dismissed without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on