(PC)Heredia v. Thomas ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 WILLIAM MARTIN HEREDIA, Case No. 1:22-cv-01439-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT 11 TO TERMINATE ACTION PURSUANT TO v. PLAINTIFF’S MOTON TO VOLUNTARILY 12 DISMISS THE ACTION J. THOMAS, et al., 13 (ECF No. 13) Defendants. 14 15 16 Plaintiff William Martin Heredia is proceeding pro se and in forma pauperis in this civil 17 rights action filed pursuant to 42 U.S.C. § 1983. 18 On February 24, 2023, Plaintiff filed a motion to voluntarily dismiss this action pursuant 19 to Federal Rule of Civil Procedure 41. 20 Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of 21 Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 22 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 23 judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. 24 Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the 25 defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or 26 all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of 27 a notice of voluntary dismiss with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise 1 stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. 2 Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal 3 leaves the parties as though no action had been brought. Id. 4 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer > or motion for summary judgment in this case. Therefore, Plaintiff's notice of dismissal is 6 effective as of the date it was filed, and this case shall be closed. 7 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is directed to terminate 8 and close this action pursuant to Plaintiff's motion for voluntarily dismissal. 9 10 | IT IS SO ORDERED. Al (re 11 | Dated: __ February 27, 2023 OF 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28