Campbell v. Gil

Filing 8

ORDER RE Plaintiff's 7 Notice of Voluntary Dismissal Under Rule 41; ORDER DIRECTING Clerk to CLOSE File signed by Magistrate Judge Gary S. Austin on 9/21/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SENARBLE CAMPBELL, 12 13 14 15 1:17-cv-01052-GSA-PC ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL UNDER RULE 41 (ECF. No. 7.) Plaintiff, vs. R. GIL, et al., ORDER DIRECTING CLERK TO CLOSE FILE Defendants. 16 17 18 19 20 21 Senarble Campbell (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 23 commencing this action on August 8, 2017. (ECF No. 1.) 24 On August 24, 2017, Plaintiff consented to Magistrate Judge jurisdiction in this action 25 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 6.) 26 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 27 California, the undersigned shall conduct any and all proceedings in the case until such time as 28 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 1 1 On September 20, 2017, Plaintiff filed a request to voluntarily dismiss this case under 2 Rule 41. (ECF No. 7.) The court construes Plaintiff’s request as a notice of dismissal under 3 Rule 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained: 4 12 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. 13 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). In this case, no defendant has 14 filed an answer or motion for summary judgment in this action. Therefore, Plaintiff=s notice of 15 dismissal is effective, and this case shall be closed. 5 6 7 8 9 10 11 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff=s notice of dismissal is effective as of the date it was filed; 18 2. This action is DISMISSED in its entirety without prejudice; and 19 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 20 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 21 22 23 24 IT IS SO ORDERED. Dated: September 21, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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