Olive v. Harrington et al

Filing 16

ORDER Regarding Plaintiff's Notice of Voluntary Dismissal 15 ; ORDER Directing Clerk of Court to Close Case and Adjust Docket to Reflect Voluntary Dismissal, signed by Magistrate Judge Barbara A. McAuliffe on 6/16/17: This action is dismissed without prejudice pursuant to Rule 41(a). All pending motions, if any, are terminated. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIEN DWAYNE OLIVE,

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Plaintiff,

ORDER REGARDING PLAINTIFF’S
NOTICE OF VOLUNTARY DISMISSAL

v.
(ECF No. 15)
KELLY HARRINGTON, et al.,
Defendants.

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Case No. 1:15-cv-01276-BAM (PC)

ORDER DIRECTING CLERK OF COURT TO
CLOSE CASE AND ADJUST DOCKET TO
REFLECT VOLUNTARY DISMISSAL

Plaintiff Damien Dwayne Olive (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff has consented to
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magistrate judge jurisdiction. (ECF No. 5.) On May 12, 2017, the Court issued a screening order
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dismissing Plaintiff’s complaint for failure to state a claim, with leave to amend. (ECF No. 14.)
Currently before the Court is Plaintiff’s motion to dismiss this action, without prejudice to refiling

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the action. (ECF No. 15.)
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“[U]nder Rule 41(a)(1)(i), 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.”

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Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999)
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(quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no

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court order is required, the parties are left as though no action had been brought, the defendant
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can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. In

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this action, no defendant has been served and no defendant has filed an answer or motion for

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summary judgment.

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Accordingly, the Clerk of the Court is HEREBY ORDERED to CLOSE the file in this

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case and adjust the docket to reflect voluntary dismissal of this action without prejudice pursuant

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to Rule 41(a). All pending motions, if any, are terminated.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 16, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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