Langston v. Cole et al

Filing 18

ORDER Granting Motion To Dismiss Pursuant To Rule 41 (Doc. 17 ), ORDER Dismissing Action In Its Entirety Without Prejudice, ORDER Directing Clerk To Close File, signed by Magistrate Judge Gary S. Austin on 6/10/2013. CASE CLOSED. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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Plaintiff,
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vs.
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C/O COLE, et al.,
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Defendants.
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____________________________________)

1:11-cv-01073-GSA-PC
ORDER GRANTING MOTION TO
DISMISS PURSUANT TO RULE 41
(Doc. 17.)
ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE
ORDER DIRECTING CLERK TO
CLOSE FILE

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Walter Shane Langston (“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 filed the complaint on June

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20, 2011. (Doc. 1.) On June 27, 2011 and July 21, 2011, Plaintiff consented to the jurisdiction of a

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Magistrate Judge, and no other parties have appeared. (Docs. 4, 9.) Therefore, pursuant to

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Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall

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conduct any and all proceedings in the case until such time as reassignment to a District Judge is

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required. Local Rule Appendix A(k)(3).

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On May 10, 2013, the court dismissed the complaint for failure for failure to state a claim,

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with leave to amend. (Doc. 16.) On June 5, 2013, Plaintiff filed a motion to dismiss this action,

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without prejudice, pursuant to Fed. R. Civ. P. 41(a). (Doc. 17.)

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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 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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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion to dismiss this action is GRANTED;

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This action is DISMISSED in its entirety without prejudice; and

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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:
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220hhe

June 10, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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