(PC) Martin v. Allison ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JARED ANDREW MARTIN, Case No. 1:22-cv-0914-JLT-SAB (PC) 11 Plaintiff, ORDER DIRECTING CLERK OF COURT TO TERMINATE ACTION PURSUANT TO 12 v. PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 KATHLEEN ALLISON, et al., (ECF No. 13) 14 Defendants. 15 16 Jared Andrew Martin (Plaintiff), a state prisoner, is proceeding pro se and in forma 17 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 On October 5, 2022, Plaintiff filed a notice of voluntary dismissal pursuant to Rule 41 of 19 the Federal Rules of Civil Procedure. Plaintiff has a right to voluntarily dismiss this case 20 under Rule 41 of the Federal Rules of Civil Procedure. In Wilson v. City of San Jose, the Ninth 21 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 3 dismissal 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 5 | answer 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: g 1. Plaintiffs 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 the Court is DIRECTED to close the file in this case and adjust the Wl docket to reflect voluntary dismissal of this action pursuant to Rule (a). 12 IT IS SO ORDERED. OF. 8 ZL, ae Dated: _ October 7, 2022 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28