Fisher v. Director of CDC, et. al.

Filing 67

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/26/12 ORDERING that in light of plaintiffs 66 voluntary dismissal of his action with prejudice, this case be closed. CASE CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN C. FISHER

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Plaintiff,

No. CIV S-05-2217 MCE CKD P

vs.
DIRECTOR OF CDCR, et al.
Defendants.

ORDER
/

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. §

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1983. On April 23, 2012, he filed a notice of voluntary dismissal with prejudice, pursuant to

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Federal Rule of Civil Procedure 41(a)(1). Under that rule, a plaintiff has “an absolute right to

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voluntarily dismiss his action prior to service by the defendant of an answer or a motion for

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summary judgment. ... The dismissal is effective on filing and no court order is required.”

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.1997). “Unless the notice or stipulation

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states otherwise, the dismissal is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B).

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Here, the notice clearly states that this action is dismissed with prejudice. It thus

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“states otherwise” with respect to the presumption that dismissals under Rule 41(a)(1) are

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without prejudice. Moreover, plaintiff filed the notice of voluntary dismissal before service of an

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answer or motion for summary judgment by any defendant. Therefore, plaintiff’s dismissal of
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his case with prejudice was effective when he filed the notice. See J&J Sports Production, Inc. v.

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George, 2008 WL 2127990 (E.D. Cal.). In that event, the court need not order dismissal of the

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complaint, but it will direct the Clerk of Court to close the case. Id.

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Accordingly, IT IS HEREBY ORDERED that, in light of plaintiff’s voluntary

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dismissal of his action with prejudice pursuant to Fed. R. Civ. P. 41(a)(1), this case be closed.

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Dated: April 26, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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fish2217.ord

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