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)

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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

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