(PC) Lewis v. State of California ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 DARONTA T. LEWIS, 1:20-00576-NONE-GSA-PC 8 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL, WITHOUT 9 vs. PREJUDICE, UNDER RULE 41 (ECF No. 28.) 10 STATE OF CALIFORNIA, et al., ORDER DIRECTING CLERK TO 11 Defendants. CLOSE CASE 12 13 Daronta T. Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 14 with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with 15 Disabilities Act, 42 U.S.C. § 12132 (1994). Plaintiff filed the Complaint commencing this action 16 on April 15, 2020 at the United States District Court for the Northern District of California. (ECF 17 No. 1.) On April 21, 2020, the case was transferred to this court. (ECF No. 4.) 18 On August 19, 2021, Plaintiff filed a motion to voluntarily dismiss this case without 19 prejudice.1 (EDF No. 28.) The court construes Plaintiff’s motion as a notice of dismissal under 20 Rule 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained: 21 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 22 judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing 23 24 1 Plaintiff has included a declaration requesting appointment of counsel as part of his 25 motion to voluntarily dismiss this case. (ECF No. 28 at 2.) The declaration, dated both June 11, 2021 (date crossed out) and August 13, 2021, which Plaintiff refers to as “Exhibit (A) Declaration in support 26 of motion to dismiss without prejudice,” ECF No. 28 at 1, appears misplaced, as it does not support the motion to dismiss. Moreover, to the extent that Plaintiff seeks appointment of counsel at this stage of the 27 proceedings, such request is denied in light of Plaintiff’s filing of a motion to voluntarily dismiss this case. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (the court will seek volunteer counsel 28 based, in part, on the likelihood of success of the merits). Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1 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 2 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 3 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 4 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 5 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- 6 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. 7 8 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 9 or motion for summary judgment in this action. Therefore, Plaintiff’s notice of dismissal is 10 effective as of the date it was filed, and this case shall be closed. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 13 2. This action is DISMISSED in its entirety without prejudice; and 14 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 15 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 16 IT IS SO ORDERED. 17 18 Dated: August 23, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28