(PC) Walker v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZAIID WALKER, 1:18-cv-01445-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF 13 VOLUNTARY DISMISSAL UNDER v. RULE 41 14 (ECF No. 13.) STEWART SHERMAN, et al., 15 Defendants. 16 17 Zaiid Walker (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 19, 2018, Plaintiff filed 19 the Complaint commencing this action. 28 U.S.C. § 1915A. (ECF No. 1.) 20 On October 30, 2019, Plaintiff filed a motion to voluntarily dismiss this action. (ECF 21 No. 13.) Plaintiff has a right to voluntarily dismiss this case under Rule 41(a)(1). In Wilson v. 22 City of San Jose, the Ninth Circuit explained: 23 24 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 25 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 26 (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 27 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 28 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 1 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, 2 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 3 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 4 brought. Id. 5 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 6 or motion for summary judgment in this action. Therefore, Plaintiff’s notice of dismissal is 7 effective, and this case shall be closed. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 10 2. This case is DISMISSED in its entirety without prejudice; and 11 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 12 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 13 IT IS SO ORDERED. 14 15 Dated: November 5, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28