Pelacos v. Mays et al

Filing 12

ORDER Closing Case due to Voluntary Dismissal without Prejudice signed by District Judge Anthony W. Ishii on 05/24/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ESTABAN PELACOS, 10 Plaintiff, 11 12 v. MAYS, et al., 13 Case No. 1:16-cv-01163-AWI-JLT (PC) ORDER CLOSING CASE DUE TO VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. 11) Defendants. 14 15 Plaintiff, Estaban Pelacos, a state prisoner proceeding pro se and in forma pauperis, filed 16 17 18 19 this civil rights action pursuant to 42 U.S.C. § 1983. On May 22, 2017, Plaintiff filed a request for dismissal of this action pursuant to Federal Rule of Civil Procedure 41. (Doc. 11.) Although not stated in Plaintiff’s request, 1 the Court construes it as one made pursuant Rule 41(a)(1)(i). In Wilson v. City of San Jose, the Ninth Circuit explained: 20 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 21 22 23 24 25 26 27 28 1 Plaintiff requested that this case be dismissed “under the voluntary dismissal rule” despite his lack of knowledge of the exact rule because he has no access to the law library. (Doc. 11.) 1 1 2 3 4 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. 5 6 7 8 9 10 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Neither answers to Plaintiff's Complaint, nor motions for summary judgment have been filed in this case; nor have any such answers or summary judgment motions been served since Plaintiff has not stated a cognizable claim for his pleading to be served on any of the defendants. 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. 11 Therefore, IT IS HEREBY ORDERED that the Clerk close this case in light of Plaintiff's 12 Rule 41(a)(1)(i) requested dismissal without prejudice. 13 14 IT IS SO ORDERED. 15 16 Dated: May 24, 2017 SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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