Lopez v. Shultz

Filing 19

ORDER Re Plaintiff's Notice of Voluntary Dismissal With Prejudice Under Rule 41 18 ; ORDER VACATING Service Order Issued on May 24, 2017 17 ; ORDER DIRECTING Clerk to Close File and Serve This Order on The United States Marshal, signed by Magistrate Judge Gary S. Austin on 6/28/17. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS FRANCISCO LOPEZ,

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Plaintiff,

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vs.
V. SHULTZ, et al.,

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Defendants.

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1:16-cv-00038-DAD-GSA-PC
ORDER RE PLAINTIFF’S NOTICE OF
VOLUNTARY DISMISSAL WITH
PREJUDICE UNDER RULE 41
(Doc. No. 18.)
ORDER VACATING SERVICE ORDER
ISSUED ON MAY 24, 2017
(Doc. No. 17.)
ORDER DIRECTING CLERK TO CLOSE
FILE AND SERVE THIS ORDER ON THE
UNITED STATES MARSHAL

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Carlos Francisco Lopez (“plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now

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proceeds with plaintiff’s original complaint filed on January 12, 2016, against defendant V.

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Shultz (Library Technical Assistant, CCI) for failure to protect, defendants V. Shultz and Doe

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#6 (Nurse, CCI) for inadequate medical care, and defendants J. Zanchi (Associate

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Governmental Program Analyst, CCI) and Doe #5 (Sergeant, CCI) for retaliation. (Doc. No.

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1.) None of the defendants have appeared.

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On June 19, 2017, plaintiff filed a notice of voluntary dismissal of this case, with

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prejudice, under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (Doc. No. 18.)

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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
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). In the present case, no

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defendant has filed an answer or motion for summary judgment. Therefore, plaintiff=s notice of

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dismissal is effective, and this case shall be closed.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s notice of dismissal is effective as of the date it was filed;

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2.

This action is DISMISSED in its entirety with prejudice;

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3.

The court’s order issued on May 24, 2017, which directed the United States

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Marshal to serve process in this case, is VACATED; and
4.

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The Clerk of the Court is DIRECTED to:
a.

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Close the file in this case and adjust the docket to reflect voluntary
dismissal of this action pursuant to Rule 41(a); and

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b.

Serve this order on the United States Marshal in Sacramento.

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IT IS SO ORDERED.
Dated:

June 28, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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