Fields v. Tilton et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
KEVIN E. FIELDS,
ORDER GRANTING REQUEST FOR
VOLUNTARY DISMISSAL PURSUANT TO
JAMES TILTON, et al.,
ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE
ORDER DIRECTING CLERK TO CLOSE FILE
Plaintiff Kevin E. Fields (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the
complaint on August 3, 2009. (Doc. 1.) On February 11, 2010, the Court dismissed the
complaint for failure to state a claim, with leave to amend. (Doc. 16.) On March 16, 2010,
Plaintiff filed an amended complaint. (Doc. 19.) On April 19, 2011, the Court entered findings
and recommendations, recommending that this action proceed with the amended complaint, on
the claims found cognizable by the Court. (Doc. 20.) The case now proceeds on Plaintiff's
amended complaint filed November 23, 2009. (Doc. 28.) On February 12, 2010, the court
dismissed the amended complaint for failure to comply with Rule 8(a), with leave to amend.
(Doc. 29.) On May 5, 2011, the Court granted Plaintiff an extension of time in which to file
objections to the findings and recommendations. (Doc. 22.) On May 31, 2011, Plaintiff filed a
notice of voluntary dismissal of this action. (Doc. 23.)
In Wilson v. City of San Jose, the Ninth Circuit explained:
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.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer
or motion for summary judgment in this action. Therefore, Plaintiff’s request for voluntary
dismissal shall be granted.
Accordingly, IT IS HEREBY ORDERED that:
Plaintiff’s request for voluntary dismissal of this action under Rule 41 is
This action is DISMISSED in its entirety without prejudice; and
The Clerk of the Court is DIRECTED to close the file in this case and adjust the
docket to reflect voluntary dismissal of this action pursuant to Rule 41(a).
IT IS SO ORDERED.
June 6, 2011
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?