(PC) Petillo v. Jasso ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH PETILLO, 1:21-cv-01020-DAD-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL UNDER 13 vs. RULE 41 (ECF No. 10.) 14 JASSO, et al., ORDER DIRECTING CLERK TO CLOSE 15 Defendants. FILE 16 17 18 19 Isaiah Petillo (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 20 filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 21 28, 2021. (ECF No. 1.) On October 7, 2021, Plaintiff filed a notice of voluntary dismissal of this 22 case. (ECF No. 10.) Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the 23 Federal Rules of Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 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 summary 25 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. 26 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 27 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 28 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 1 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 2 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- 3 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. 4 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 case. 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: October 12, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28