(PC) Saylor v. Cervantes ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN ELDON SAYLOR, 1:21-cv-01101-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL UNDER 13 vs. RULE 41 (ECF No. 9.) 14 CERVANTES, ORDER DIRECTING CLERK TO CLOSE 15 Defendants. FILE 16 17 Brian Eldon Saylor (“Plaintiff”) is a 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 July 20, 2021. (ECF No. 1.) 20 On January 7, 2022, Plaintiff filed a notice of voluntary dismissal of this case. (ECF No. 21 9.) Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of 22 Civil Procedure. 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). No defendant has filed an answer 5 or motion for summary judgment in this case. 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 case is DISMISSED in its entirety without prejudice; and 10 3. The Clerk of 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: January 10, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28