George v. Voong et al

Filing 9

ORDER CLOSING CASE Due to Plaintiff's Voluntary Dismissal Without Prejudice signed by Magistrate Judge Sheila K. Oberto on 8/4/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARD EARL GEORGE, Case No. 1:16-cv-01514-SKO (PC) 10 Plaintiff, 11 v. ORDER CLOSING CASE DUE TO PLAINTIFF’S VOLUNTARY DISMISSAL WITHOUT PREJUDICE 12 VOONG, et al., (Doc. 8) 13 Defendants. 14 15 16 Plaintiff, Richard Earl George, a state prisoner proceeding pro se and in forma pauperis, 17 filed this civil rights action pursuant to 42 U.S.C. § 1983. On July 24, 2017, Plaintiff filed a 18 request for dismissal of this action. (Doc. 13.) Although not stated in Plaintiff’s request, the 19 Court construes the request as one made pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). 20 21 22 23 24 25 26 27 28 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 1 1 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. 2 3 4 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). 5 Neither answers to Plaintiff’s Complaint, nor motions for summary judgment have been 6 filed in this case, and it appears that no such answers or summary judgment motions have been 7 served. Because Plaintiff has exercised his right to voluntarily dismiss the complaint under Rule 8 41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692. Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light 9 10 of Plaintiff’s Rule 41(a)(1)(i) request for dismissal without prejudice. 11 12 13 14 IT IS SO ORDERED. Dated: August 4, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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