Fields v. Masiel et al

Filing 83

ORDER Closing Case in Light of Unopposed Request to Dismiss 80 , signed by District Judge Anthony W. Ishii on 09/30/14. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN E. FIELDS,

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Plaintiff,
v.
JOSE MASIEL, et al.,
Defendants.

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1:10-cv-01699-AWI-BAM (PC)
ORDER CLOSING CASE IN LIGHT OF
UNOPPOSED REQUEST TO DISMISS
(ECF No. 80)

Plaintiff Kevin E. Fields (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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September 17, 2010. Defendants Masiel, Aguirre and Hernandez have answered the complaint.

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On September 10, 2014, Plaintiff filed a motion requesting voluntary dismissal of this

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action pursuant to Federal Rule of Civil Procedure 41(a). (ECF No. 80.) On September 25,

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2014, Defendants filed a statement of non-opposition. (ECF No. 82.)

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Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all

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of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy

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Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a

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motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary

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dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. P. 41(a);

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in

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relevant part: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s
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request only by court order, on terms that the court considers proper. . . . Unless the order states

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otherwise, a dismissal under this paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2);

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Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A district court should grant a motion for

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voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some

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plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).

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In this instance, Defendants have filed and served an answer, and Plaintiff’s motion did

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not contain a stipulation signed by Defendants. As such, an automatic dismissal under Rule

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41(a)(1) is not possible. See Fed. R. Civ. P. 41(a)(1). However, Defendants have not opposed

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the request and consent to dismissal of this action. Given Defendants’ non-opposition, the Court

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finds no reason to deny Plaintiff’s request for voluntary dismissal under Rule 41(a)(2).

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Therefore, the Court shall grant the motion and close this action. See Fed. R. Civ. P. 41(a)(2);

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Hargis, 312 F.3d at 412; Smith, 263 F.3d at 975.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for voluntary dismissal under Rule 41(a)(2) is GRANTED;

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2. All pending motions, if any, are TERMINATED; and

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3. The Clerk of the Court is directed to CLOSE this case.

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This terminates the action in its entirety.

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IT IS SO ORDERED.

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Dated: September 30, 2014

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SENIOR DISTRICT JUDGE

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