Fields v. Tilton et al

Filing 24

ORDER Granting 23 Request for Voluntary Dismissal Pursuant to Rule 41; ORDER Dismissing Action in its Entirety Without Prejudice signed by Judge Oliver W. Wanger on 06/06/2011. CASE CLOSED. (Flores, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

KEVIN E. FIELDS,

1:09-cv-01406-OWW-GSA-PC

11

ORDER GRANTING REQUEST FOR
VOLUNTARY DISMISSAL PURSUANT TO
RULE 41
(Doc. 23.)

Plaintiff,
12
v.
13
JAMES TILTON, et al.,

ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE

14
15

Defendants.

ORDER DIRECTING CLERK TO CLOSE FILE
/

16
17

Plaintiff Kevin E. Fields (“Plaintiff”) is a state prisoner proceeding pro se and in forma

18

pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the

19

complaint on August 3, 2009. (Doc. 1.) On February 11, 2010, the Court dismissed the

20

complaint for failure to state a claim, with leave to amend. (Doc. 16.) On March 16, 2010,

21

Plaintiff filed an amended complaint. (Doc. 19.) On April 19, 2011, the Court entered findings

22

and recommendations, recommending that this action proceed with the amended complaint, on

23

the claims found cognizable by the Court. (Doc. 20.) The case now proceeds on Plaintiff's

24

amended complaint filed November 23, 2009. (Doc. 28.) On February 12, 2010, the court

25

dismissed the amended complaint for failure to comply with Rule 8(a), with leave to amend.

26

(Doc. 29.) On May 5, 2011, the Court granted Plaintiff an extension of time in which to file

27

objections to the findings and recommendations. (Doc. 22.) On May 31, 2011, Plaintiff filed a

28

notice of voluntary dismissal of this action. (Doc. 23.)
1

1
In Wilson v. City of San Jose, the Ninth Circuit explained:
2

10

Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss
his action prior to service by the defendant of an answer or a motion for summary
judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing
Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir.
1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of
dismissal prior to the defendant’s service of an answer or motion for summary
judgment. The dismissal is effective on filing and no court order is required. Id.
The plaintiff may dismiss some or all of the defendants, or some or all of his
claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 60910 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court
automatically terminates the action as to the defendants who are the subjects of
the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is
ordinarily without prejudice to the plaintiff's right to commence another action for
the same cause against the same defendants. Id. (citing McKenzie v. DavenportHarris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal
leaves the parties as though no action had been brought. Id.

11

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer

12

or motion for summary judgment in this action. Therefore, Plaintiff’s request for voluntary

13

dismissal shall be granted.

3
4
5
6
7
8
9

14

Accordingly, IT IS HEREBY ORDERED that:

15

1.

16

Plaintiff’s request for voluntary dismissal of this action under Rule 41 is
GRANTED;

17

2.

This action is DISMISSED in its entirety without prejudice; and

18

3.

The Clerk of the Court is DIRECTED to close the file in this case and adjust the

19

docket to reflect voluntary dismissal of this action pursuant to Rule 41(a).

20

IT IS SO ORDERED.

21

Dated:
June 6, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
2