(PC) Weston v. Valley State Prison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN F. WESTON, Case No. 1:20-cv-00025-DAD-GSA-PC 12 Plaintiffs, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL, WITH 13 vs. PREJUDICE, UNDER RULE 41 (ECF No. 10.) 14 VALLEY STATE PRISON, et al., ORDER DIRECTING CLERK TO CLOSE 15 Defendants. FILE 16 17 John F. Weston (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The Complaint commencing 19 this action was filed on December 26, 2019 and opened as Case No. 1:19-cv-1797, Gann v. 20 Valley State Prison. On January 7, 2020, Plaintiff’s claims were severed from the claims in Case 21 No. 1:19-cv-1797, and this case was opened for Plaintiff to proceed with his own case. (ECF 22 No. 1.) 23 On May 20, 2021, Plaintiff filed a notice of voluntary dismissal of this case, with 24 prejudice. (ECF No. 10.) Plaintiff has a right to voluntarily dismiss this case under Rule 41 of 25 the Federal Rules of Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 26 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 27 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. 28 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 1 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 2 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 3 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 4 ordinarily without prejudice to the plaintiff’s right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. 5 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. 6 7 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 8 or motion for summary judgment in this case. Therefore, Plaintiff’s notice of dismissal is 9 effective, and this case shall be closed. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 12 2. This case is DISMISSED in its entirety, with prejudice; and 13 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 14 docket to reflect voluntary dismissal of this action, with prejudice, pursuant to 15 Rule 41(a). 16 IT IS SO ORDERED. 17 18 Dated: May 22, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28