Patrick v. Diaz et al

Filing 15

ORDER CLOSING CASE Due to 14 Voluntary Dismissal Without Prejudice signed by District Judge Anthony W. Ishii on 1/25/2018. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS PATRICK,

Case No. 1:17-cv-01121-AWI-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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DIAZ, et al.,

(Doc. 14)

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Defendants.
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Plaintiff, Nicholas Patrick, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. On January 19, 2018, Plaintiff filed a request to voluntarily

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dismissal of this action. (Doc. 14.) Although not stated in Plaintiff’s request, the Court construes

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it as one made pursuant to Federal Rule of Civil 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
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
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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). Neither answers to Plaintiff’s

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Complaint, nor motions for summary judgment have been filed in this case and it appears that no

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such answers or summary judgment motions have been served. Because Plaintiff has exercised

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his right to voluntarily dismiss the complaint under Rule 41(a)(1), this case has terminated. See

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Wilson, 111 F.3d at 692.

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Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light
of Plaintiff’s Rule 41(a)(1)(i) requested dismissal without prejudice.

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IT IS SO ORDERED.
Dated: January 25, 2018
SENIOR DISTRICT JUDGE

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