Koch v. King et al

Filing 14

ORDER CLOSING the Case Due to Voluntary Dismissal Without Prejudice 13 , signed by Magistrate Judge Sheila K. Oberto on 2/14/17. (CASE CLOSED) (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROLAND THOMAS KOCH,

Case No. 1:15-cv-00438-SKO (PC)

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Plaintiff,
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v.

ORDER CLOSING THE CASE DUE TO
VOLUNTARY DISMISSAL WITHOUT
PREJUDICE

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KING, et al.,

(Doc. 13)

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Defendants.
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Plaintiff Roland Thomas Koch, a civil detainee proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. § 1983. On February 10, 2017, Plaintiff filed a

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request for dismissal of this action. (Doc. 13.) Although not stated in Plaintiff’s request, 1 the

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Court construes the request as one made pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).

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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

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Plaintiff used a “Request for Dismissal” form for actions in a Superior Court of California and completed all of the
requisite information. (Doc. 13.)

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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 answers to Plaintiff's Complaint or motions for summary judgment have been filed in

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this case, and it appears that no such answers or summary judgment motions have been served.
Because Plaintiff has exercised his right to voluntarily dismiss the complaint under Rule 41(a)(1),
this case has terminated. See Wilson, 111 F.3d at 692.
Based on the foregoing, IT IS HEREBY ORDERED that the Clerk shall close this case in

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light of Plaintiff's Rule 41(a)(1)(i) request for dismissal without prejudice.
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IT IS SO ORDERED.
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Dated:

February 14, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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