(PC) Keith Wright v. Sherman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH WRIGHT, ) Case No.: 1:21-cv-01111-SAB (PC) ) 12 Plaintiff, ) ) ORDER WITHDRAWING FINDINGS AND 13 v. ) RECOMMENDATIONS ISSUED ON FEBRUARY 3, 2022 14 STUART SHERMAN, et al., ) ) ORDER TERMINATING ACTION PURSUANT 15 Defendants. ) TO PLAINTIFF’S NOTICE OF VOLUNTARY ) DISMISSAL 16 ) ) (ECF Nos. 12, 13) 17 ) 18 Plaintiff Keith Wright is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On February 22, 2022, Plaintiff filed a notice to voluntary dismiss this action pursuant to Rule 21 41 of the Federal Rules of Civil Procedure. (ECF No. 13.) 22 Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of Civil 23 Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 24 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 judgment. Concha v. London, 25 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 26 813 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 defendant's service of an answer or motion for summary 27 judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) 28 1 notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants wh 2 are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal 3 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. Davenport-Harris Funeral Home, 4 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no □□□□□□ had been brought. Id. 5 6 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No Defendant has filed an answer or 7 motion for summary judgment in this case. Therefore, Plaintiff's notice of dismissal is effective as of g the date it was filed, and this case shall be closed. The Court shall withdraw the Findings and 9 Recommendations issued on February 3, 2022. 10 Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and recommendations issued on February 3, 2022, are withdrawn; and 2. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket to B reflect voluntary dismissal, without prejudice, of this action pursuant to Rule 41(a). 14 15 IT IS SO ORDERED. DAA (e_ 16 ||Dated: _ February 23, 2022 ; UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28