Bonilla v. Smith

Filing 11

ORDER granting 10 Motion to Dismiss without prejudice signed by District Judge Lawrence J. O'Neill on 7/17/2012. Case Voluntarily Dismissed by Plaintiff. CASE CLOSED. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DANIEL BONILLA,

1:12-cv-00421-LJO-GSA-PC

12

ORDER GRANTING MOTION TO DISMISS
PURSUANT TO RULE 41
(Doc. 10.)

Plaintiff,
13
v.
14

ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE

H. SMITH,
15

ORDER DIRECTING CLERK TO CLOSE FILE
16

Defendant.
/

17
18

Plaintiff Daniel Bonilla (“plaintiff”) is a state prisoner proceeding pro se and in forma

19

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

20

complaint on March 22, 2012. (Doc. 1.) On July March 16, 2012, plaintiff filed a motion to

21

dismiss the complaint. (Doc. 10.)

22

In Wilson v. City of San Jose, the Ninth Circuit explained:

23

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, 60910 (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

24
25
26
27
28

1

1

3

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. DavenportHarris 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.

4

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

5

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

2

6

Accordingly, IT IS HEREBY ORDERED that:

7

1.

Plaintiff’s motion to dismiss the complaint is GRANTED;

8

2.

This action is DISMISSED in its entirety without prejudice; and

9

3.

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

10

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

11
12

IT IS SO ORDERED.

13

Dated:
66h44d

July 17, 2012

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

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2