(PC) Reid v. Cryer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRIN REID, 1:19-cv-01766-DAD-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 vs. UNDER RULE 41 (ECF No. 16.) 14 C. CRYER, et al., ORDER DIRECTING CLERK TO 15 Defendants. CLOSE FILE 16 17 Darrin Reid (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 18 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing 19 this action on December 18, 2019. (ECF No. 1.) The case is currently in the screening stage. 20 On March 8, 2021, Plaintiff filed a request to voluntarily dismiss this case without 21 prejudice. (ECF No. 16.) The court construes Plaintiff’s request as a notice of dismissal under 22 Rule 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained: 23 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 24 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. 25 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 26 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 27 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 28 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 1 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- 2 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. 3 4 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). In this case, no defendant has 5 filed an answer or motion for summary judgment. Therefore Plaintiff’s notice of dismissal is 6 effective, and this case shall be closed. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 9 2. This action is DISMISSED in its entirety without prejudice; and 10 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 11 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 12 IT IS SO ORDERED. 13 14 Dated: March 10, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28