(PC) Spencer v. Edwards ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, Case No. 1:21-cv-01410-BAM (PC) 12 Plaintiff, NOTICE OF ERRATA 13 v. AMENDED ORDER REGARDING PLAINTIFF’S NOTICE OF VOLUNTARY 14 EDWARDS, DISMISSAL 15 Defendant. (ECF No. 12) 16 17 Plaintiff Edward B. Spencer (“Plaintiff”) is a state prisoner who proceeded pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On December 28, 2021, the Court screened Plaintiff’s complaint and issued an order 20 granting Plaintiff leave to file a first amended complaint or a notice of voluntary dismissal. (ECF 21 No. 9.) Plaintiff filed a motion for an extension of time to file an amended complaint, which the 22 Court granted on January 19, 2022. (ECF Nos. 10, 11.) 23 On February 2, 2022, Plaintiff filed a notice of voluntary dismissal without prejudice. 24 (ECF No. 12.) Plaintiff requests that this entire action be dismissed without prejudice, including 25 all causes of action, pursuant to Federal Rule of Civil Procedure 41(a)(1). (Id.) 26 “[U]nder Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss his 27 action prior to service by the defendant of an answer or a motion for summary judgment.” 28 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 1 (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no 2 court order is required, the parties are left as though no action had been brought, the defendant 3 can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No 4 defendant has been served in this action and no defendant has filed an answer or motion for 5 summary judgment. 6 Pursuant to Rule 41(a)(1), on February 3, 2022, the Court issued an order terminating this 7 action, with prejudice, by operation of law without further order from the Court, and the case was 8 closed. (ECF No. 13 (emphasis added).) 9 On February 14, 2022, Plaintiff filed an objection to the Court’s February 3, 2022, order, 10 arguing that he stipulated to dismissal without prejudice, while the Court’s order terminated the 11 case with prejudice. (ECF No. 14.) Upon review of the case, the Court finds that Plaintiff’s 12 objection is meritorious, and issues the instant Notice of Errata to correct the clerical error in the 13 February 3, 2022 order. 14 Accordingly, IT IS HEREBY ORDERED as follows: 15 1. By the instant amended order, this action is terminated, without prejudice, by operation 16 of law without further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i); and 17 2. This case remains closed. 18 IT IS SO ORDERED. 19 20 Dated: February 16, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28