(PC) Riley v. Guerrero ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON RILEY, Case No. 1:19-cv-01643-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 v. (ECF No. 10) 14 GUERRERO, et al., 15 Defendants. 16 17 Plaintiff Shannon Riley (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On February 5, 2020, the Court screened Plaintiff’s complaint and granted Plaintiff leave 20 to file a first amended complaint or a notice of voluntary dismissal within thirty (30) days from 21 the date of service of that order. (ECF No. 9.) On March 9, 2020, Plaintiff filed the instant 22 motion for dismissal of action pursuant to Federal Rule of Civil Procedure 41(a)(1). (ECF No. 23 10.) In his notice, Plaintiff states that he is currently in the process of returning to state court for a 24 hearing regarding a petition for re-sentencing, and he does not believe he would be able to 25 effectively litigate this complaint and his criminal case as well. Plaintiff therefore requests 26 voluntary dismissal of this action, and states that he will re-file his complaint in not later than six 27 /// 28 /// 1 months with the Court’s permission.1 (Id.) 2 “[U]nder Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss his 3 action prior to service by the defendant of an answer or a motion for summary judgment.” 4 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 5 (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no 6 court order is required, the parties are left as though no action had been brought, the defendant 7 can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No 8 defendant has been served in this action and no defendant has filed an answer or motion for 9 summary judgment. 10 Accordingly, this action is terminated by operation of law without further order from the 11 Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to terminate all pending 12 motions and deadlines and close this case. 13 IT IS SO ORDERED. 14 15 Dated: March 10, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 1 The Court notes that Plaintiff need not obtain the Court’s explicit permission to attempt to re- file his complaint. However, the Court also cannot provide legal advice to Plaintiff regarding any 28 possible future issues that may arise when or if he attempts to re-file this action.