Messer v. United States Penitentiary Atwater Food Service Department

Filing 28

ORDER GRANTING 27 Motion to Dismiss (Voluntary Dismissal); ORDER DISMISSING Action in its entirety without prejudice signed by Magistrate Judge Gary S. Austin on 03/31/2015. CASE CLOSED (Martin-Gill, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

CECIL MESSER,

11
12
13
14
15

1:13-cv-01300-GSA-PC

Plaintiff,

ORDER GRANTING MOTION TO
DISMISS PURSUANT TO RULE 41
(Doc. 27.)

vs.
UNITED STATES PENITENTIARY
ATWATER FOOD SERVICE
DEPARTMENT, et al.,

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

Defendants.

16
17
18

Cecil Messer (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis

19

with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971).

20

Plaintiff filed the Complaint commencing this action on August 16, 2013. (Doc. 1.)

21

October 15, 2013, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

22

636(c), and no other parties have made an appearance. (Doc. 7.) Therefore, pursuant to

23

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

24

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

25

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

On

26

On March 30, 2015, Plaintiff filed a motion to dismiss this action “upon request from

27

Plaintiff.” (Motion, Doc. 27.) Plaintiff states that he “is not knowledgeable enough to continue

28

this arguement (sic).” (Id.)
1

1
2
3
4
5
6
7

8
9
10
11

The court construes Plaintiff’s motion as a motion to dismiss under Rule 41(a)(1). In
Wilson v. City of San Jose, the Ninth Circuit explained:
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.

12

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

13

answer or motion for summary judgment in this action. Therefore, Plaintiff=s motion shall be

14

granted.

15

Accordingly, IT IS HEREBY ORDERED that:

16

1.

Plaintiff=s motion to dismiss this case is GRANTED;

17

2.

This action is DISMISSED in its entirety without prejudice; and

18

3.

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

19

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

20
21
22

23

IT IS SO ORDERED.
Dated:

March 31, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
2