Smith v State of California [CA Dept. of Corrections and Rehabilitation]

Filing 38

ORDER Granting Plaintiff's Request for Dismissal, Dismissing Action with Prejudice, and Directing Clerk of the Court to Close Matter signed by Chief Judge Lawrence J. O'Neill on 12/13/2018. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARLENE SMITH,
Plaintiff,

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Case No. 1:17-cv-01058-LJO-SAB
ORDER GRANTING PLAINTIFF’S
REQUEST FOR DISMISSAL,
DISMISSING ACTION WITH PREJUDICE,
AND DIRECTING CLERK OF THE
COURT TO CLOSE MATTER

v.

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GINA MENDOZA, et al.,

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Defendants.

(ECF No. 35)

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Plaintiff Earlene Smith filed this action on August 8, 2017, against the State of California

18 [California Department of Corrections and Rehabilitation] (“Defendant CDCR”). (ECF No. 1.)
19 Defendant CDCR filed a motion to dismiss on September 29, 2017.

(ECF No. 7.)

The

20 magistrate judge issued findings and recommendations recommending granting Defendant
21 CDCR’s motion to dismiss on October 24, 2017. (ECF No. 12.) An order adopting the findings
22 and recommendations and granting Defendant CDCR’s motion to dismiss was filed on
23 November 29, 2017. (ECF No. 15.)
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On March 9, 2018, Plaintiff filed a first amended complaint against Defendants Jose

25 Lopez and Gina Mendoza. (ECF No. 20.) On June 22, 2018, Defendants Lopez and Mendoza
26 filed an answer. (ECF No. 30.) On July 9, 2018, an amended answer was filed. (ECF No. 31.)
27 On December 11, 2018, Plaintiff filed a request for voluntary dismissal pursuant to Fed. R. Civ.
28 P. 41(a)(2). (ECF No. 35.) At the order of the Court, on December 12, 2018, Defendants Lopez

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1 and Mendoza filed a response to the request for dismissal. (ECF No. 37.)
Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, a party may dismiss an

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3 action by filing a motion requesting the Court to dismiss the action. Fed. R. Civ. P. 41(a)(2). A
4 motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the
5 district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982).
6 “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a
7 defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches,
8 263 F.3d 972, 975 (9th Cir. 2001).
Plaintiff requests that this action be dismissed with prejudice with each side to bear its

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10 own costs and fees. Defendants Lopez and Mendoza do not object to the request for dismissal.
11 Accordingly, the Court shall grant the request.
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff Earlene Smith’s

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13 request for dismissal is GRANTED and this action is DISMISSED WITH PREJUDICE with the
14 parties to bear their own costs and fees. The Clerk of the Court is DIRECTED to close this
15 matter.
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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 13, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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