- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH L. ENNIS, Case No. 1:23-cv-00160-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 v. WITHOUT PREJUDICE 14 ANDERSON, et al., (ECF No. 27) 15 Defendants. 16 17 Plaintiff Joseph L. Ennis (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 19 first amended complaint against Defendants J. Anderson and D. Castillo for excessive force in 20 violation of the Eighth Amendment. All parties have consented to Magistrate Judge jurisdiction. 21 (ECF No. 25.) 22 On October 13, 2023, Defendants filed a motion to dismiss. (ECF No. 22.) Following 23 Plaintiff’s failure to file a response, the Court issued an order to show cause why this action 24 should not be dismissed for failure to prosecute. (ECF No. 26.) In response, Plaintiff filed a 25 notice of voluntary dismissal on December 14, 2023. (ECF No. 27.) Plaintiff requests dismissal 26 of his complaint, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). (Id.) 27 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 28 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 1 Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and 2 citation omitted). Even if a defendant has filed a motion to dismiss, the plaintiff may terminate 3 his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). Concha v. London, 62 4 F.3d 1493, 1506 (9th Cir. 1995) (citing Miller v. Reddin, 422 1264, 1265 (9th Cir. 1970)). “[A] 5 dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left 6 as though no action had been brought, the defendant can’t complain, and the district court lacks 7 jurisdiction to do anything about it.” Commercial Space Mgmt., 193 F.3d at 1078. No defendant 8 has filed an answer or motion for summary judgment in this action. 9 Accordingly, this action is terminated, without prejudice, by operation of law without 10 further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed 11 close this case. 12 IT IS SO ORDERED. 13 14 Dated: December 15, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:23-cv-00160
Filed Date: 12/15/2023
Precedential Status: Precedential
Modified Date: 6/20/2024