Tilei v. McGuinness et al

Filing 65

ORDER Dismissing Defendant Hasadsri without Prejudice Fed Rule Civ P 41(a)(1)(A)(i), signed by Chief Judge Lawrence J. O'Neill on 4/4/17. Hasadsri (M.D.) terminated. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PUNAOFO TSUGITO TILEI,

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Plaintiff,
v.
McGUINESS, et al.,

Case No. 1:10-cv-00069-LJO-SKO (PC)
ORDER DISMISSING DEFENDANT H.
HASRDSRI WITHOUT PREJUDICE
FED RULE CIV P 41(a)(1)(A)(i)
(Doc. 64)

Defendants.

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Plaintiff, Punaofo Tsugito Tilei, a state prisoner proceeding in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983. On February 21, 2017, Plaintiff filed a notice of
dismissal of Defendant H. Hasrdsri without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). (Doc. 64.)
In Wilson v. City of San Jose, the Ninth Circuit explained:

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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, 609-10 (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.
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(citing McKenzie v. Davenport-Harris 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).
Defendant H. Hasrdsri has filed neither an answer, nor a motion for summary judgment in
this action. Plaintiff has not filed a proof of service of this action on Defendant H. Hasrdsri, and
represents that his efforts to do so have been unsuccessful. Because Plaintiff has exercised his
right under Rule 41(a)(1)(A)(i), Defendant H. Hasrdsri and all claims against him have been
terminated from this action. See Wilson, 111 F.3d at 692.

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Therefore, IT IS HEREBY ORDERED that Defendant H. Hasrdsri and all claims against

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him are dismissed without prejudice and the Clerk is ordered to terminate Defendant H. Hasrdsri

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from the docket of this case in light of Plaintiff's Rule 41(a)(1)(A)(i) notice of dismissal.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 4, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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