Mello v. Aguiar et al

Filing 17

ORDER GRANTING Motion to Dismiss Pursuant to Rule 41 10 ; ORDER DISMISSING Action in its Entirety Without Prejudice; ORDER DIRECTING Clerk to Close File, signed by District Judge Lawrence J. O'Neill on 8/14/12. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM DOUGLAS MELLO,

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Plaintiff,

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1:10-cv-00828-LJO-GSA-PC
ORDER GRANTING MOTION TO DISMISS
PURSUANT TO RULE 41
(Doc. 10.)

v.
F. AGUIAR, et al.,

ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE

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Defendants.

ORDER DIRECTING CLERK TO CLOSE FILE

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I.

BACKGROUND

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William Douglas Mello (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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

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commencing this action on May 12, 2010. (Doc. 1.) On July 6, 2010, Plaintiff filed an amended

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complaint. (Doc. 9.) On July 26, 2012, the Court issued an order dismissing the amended

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complaint, for failure to state a claim, with leave to amend. (Doc. 15.)

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On August 13, 2012, Plaintiff filed a motion to voluntarily dismiss this action. (Doc. 16.)
II.

RULE 41 DISMISSAL OF ACTION

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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

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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. (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.

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

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motion for summary judgment in this action. Therefore, Plaintiff’s motion shall be granted.

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IV.

CONCLUSION

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to voluntarily dismiss the complaint is GRANTED;

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2.

This action is DISMISSED in its entirety without prejudice; and

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3.

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

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

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IT IS SO ORDERED.

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Dated:
66h44d

August 14, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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