Howell v. Alejo et al

Filing 17

ORDER re Plaintiff's Notice of Voluntary Dismissal Under Rule 41 re 16 , signed by Magistrate Judge Gary S. Austin on 3/5/19. CASE CLOSED(Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KAREEM J. HOWELL,
Plaintiff,

12
13

vs.

14

J. ALEJO, et al.,

15

Defendants.

1:18-cv-00825-GSA-PC
ORDER RE PLAINTIFF’S NOTICE OF
VOLUNTARY DISMISSAL UNDER
RULE 41
(ECF No. 16.)
ORDER DIRECTING CLERK TO CLOSE FILE

16
17
18
19

Kareem J. Howell (“Plaintiff”) is a state prisoner proceeding pro se and in forma

20

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

21

Complaint commencing this case on June 18, 2018. (ECF No. 1.)

Plaintiff filed the

22

On February 28, 2019, a settlement conference was held before Magistrate Judge

23

Stanley A. Boone, and the case settled. (ECF No. 15.) Terms of the settlement were placed on

24

the record. (Id.)

25

were present. (Id.) The parties were directed to submit dispositive documents within thirty

26

days. (Id.; ECF No. 14.)

Plaintiff Howell and counsel for Defendants, Sarah Brattin and N. Cahill,

27

On March 1, 2019, Plaintiff filed a notice of voluntary dismissal of this case, with

28

prejudice, under Rule 41(a)(1)(A)(i). (ECF No. 16.) Plaintiff has a right to voluntarily dismiss
1

1

this case under Rule 41 of the Federal Rules of Civil Procedure. In Wilson v. City of San Jose,

2

the Ninth Circuit explained:

3
4
5
6
7
8
9
10
11
12
13
14
15

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); Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548
F.3d 738, 748 (9th Cir. 2008)). 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.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).
No defendant has filed or served an answer or motion for summary judgment in this
case. Therefore, Plaintiff’s notice of dismissal is effective, and this case shall be closed.

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 case is DISMISSED in its entirety, with 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:

March 5, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

25
26
27
28
2