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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PUNAOFO TSUGITO TILEI, 10 11 12 13 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. 14 15 16 17 18 19 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: 20 21 22 23 24 25 26 27 28 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. 1 1 2 3 4 5 6 7 8 (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. 9 Therefore, IT IS HEREBY ORDERED that Defendant H. Hasrdsri and all claims against 10 him are dismissed without prejudice and the Clerk is ordered to terminate Defendant H. Hasrdsri 11 from the docket of this case in light of Plaintiff's Rule 41(a)(1)(A)(i) notice of dismissal. 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ April 4, 2017 UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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