(PC) Hampton v. Alkire ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY C. HAMPTON, No. 2: 19-cv-1660 WBS KJN P 12 Plaintiff, 13 v. ORDER 14 ALKIRE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On February 27, 2020, plaintiff filed a motion for voluntary dismissal of 19 this action. (ECF No. 52.) On March 5, 2020, the undersigned granted defendants seven days to 20 notify the court if they had any objections to dismissal of this action. (ECF No. 53.) On March 9, 21 2020, defendants filed objections. (ECF No. 54.) 22 For the reasons stated herein, the undersigned finds that the order directing defendants to 23 respond to plaintiff’s motion to dismiss was issued in error. This action is dismissed for the 24 reasons stated herein. 25 Under Rule 41 of the Federal Rules of Civil Procedure, “the plaintiff may dismiss an 26 action without a court order by filing ... a notice of dismissal before the opposing party serves 27 //// 28 //// 1 | either an answer or a motion for summary judgment....” Fed. R. Civ. P. 41(a)(1)(A)G). The 2 | Ninth Circuit has been clear that Rule 41 confers on the plaintiff 3 an absolute right to voluntarily dismiss his [or her] action prior to service by the defendant of an answer or a motion for summary 4 judgment. A plaintiff may dismiss his [or her] action so long as the plaintiff files a notice of dismissal prior to the defendant's service of 5 an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required....The filing of a 6 notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the 7 notice....Such a dismissal leaves the parties as though no action had 3 been brought. 9 | American Soccer Co., Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) 10 | (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). 11 “Further, because the language of Rule 41(a)(1)(A)Q) is unequivocal, the ‘’ absolute right” 12 | fora plaintiff voluntarily to dismiss an action when the defendant has not yet served an answer or 13 || a summary judgment motion leaves no role for the court to play.’” Pate v. Cheng, 2015 WL 14 | 795061, at *1 (D. Ariz. Feb. 25, 2015) (quoting American Soccer Co., Inc., 187 F.3d at 1110.) 15 In the instant case, defendants filed neither an answer nor a summary judgment motion.! 16 | Therefore, the undersigned herein directs the Clerk of the Court to terminate this action. 17 Accordingly, IT IS HEREBY ORDERED that this action is dismissed. 18 || Dated: March 31, 2020 19 Al Norra 20 EKENDALLJ. WEA UNITED STATES MAGISTRATE JUDGE 21 Hamp 1660.dis 22 23 24 25 ' On February 27, 2020, defendants filed a motion to dismiss for failure to exhaust administrative remedies pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 51.) “If 26 | defendants ‘desire to prevent plaintiffs from invoking their unfettered right to dismiss actions under rule 41(1)(a) [they] may do so by taking the simple step of filing an answer.’” American 27 | Soccer Co., Inc., 187 F.3d at 1112 (quoting Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977)). 28