Miller v. Ghilarducci

Filing 13

ORDER Closing the Case Due to Voluntary Dismissal without Prejudice re 12 , signed by Magistrate Judge Sheila K. Oberto on 11/21/17. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARROD JOSEPH MILLER,

Case No. 1:17-cv-00448-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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GHILARDUCCI, et al.,

(Doc. 12)

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Defendants.
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Plaintiff, Jarrod Joseph Miller, a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. § 1983. On November 17, 2017, Plaintiff filed

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a “Motion to Dismiss Without Prejudice.” (Doc. 12.) Although not stated in Plaintiff’s request,

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the Court construes it as a notice of voluntary dismissal pursuant to Federal Rule of Civil

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Procedure 41(a)(1)(i).

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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
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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).

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Neither answers to Plaintiff's Complaint, nor motions for summary judgment have been

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filed in this case and it appears that no such answers or summary judgment motions have been

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served. Because Plaintiff has exercised his right to voluntarily dismiss the complaint under Rule

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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

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of Plaintiff's Rule 41(a)(1)(i) requested dismissal without prejudice.

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IT IS SO ORDERED.
Dated:

November 21, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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