Carlos Manuel Flores v. Corcoran State Prison et al

Filing 26

ORDER GRANTING 23 Motion to Dismiss Pursuant to Rule 41; ORDER DISMISSING Action in its Entirety without Prejudice; ORDER DIRECTING Clerk to CLOSE File signed by Magistrate Judge Gary S. Austin on 12/20/2013. CASE CLOSED. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CARLOS MANUEL FLORES,

12

1:12-cv-00977-GSA-PC

Plaintiff,

13

ORDER GRANTING MOTION TO
DISMISS PURSUANT TO RULE 41
(Doc. 23.)

vs.

14

CORCORAN STATE PRISON, et al.,

15

Defendants.

ORDER DISMISSING ACTION IN ITS
ENTIRETY WITHOUT PREJUDICE
ORDER DIRECTING CLERK TO CLOSE
FILE

16
17
18

Carlos Manuel Flores ("Plaintiff") is a state prisoner proceeding pro se and in forma

19

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

20

commencing this action on June 18, 2012. (Doc. 1.) The parties have consented to Magistrate

21

Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 5, 15.) This case now proceeds with

22

the First Amended Complaint, filed by Plaintiff on September 17, 2012, against defendant Dr.

23

Moon, for failure to provide adequate medical care to Plaintiff, in violation of the Eighth

24

Amendment. (Doc. 7.)

25

On December 16, 2013, Plaintiff filed a motion to “dismiss this lawsuit and all litigation

26

involved in this complaint.” (Id.) The court construes Plaintiff’s motion as a motion to dismiss

27

under Rule 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained:

28

///
1

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.

1
2
3
4
5
6
7
8
9
10

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). In this case, defendant Moon,

11

the sole defendant, has consented in writing to the dismissal. (Doc. 25.) Therefore, Plaintiff’s

12

motion to dismiss shall be granted, dismissing this action in its entirety.

13

Accordingly, IT IS HEREBY ORDERED that:

14

1.

Plaintiff=s motion to dismiss, filed on December 16, 2013, is GRANTED;

15

2.

This action is DISMISSED in its entirety without prejudice; and

16

3.

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

17

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

18
19
20
21

IT IS SO ORDERED.

22
23
24

Dated:

December 20, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

25
26
27
28
2