(PC) Steele v. All Ye Judges of the Courts ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REBEKAH SUE STEELE, 1:22-cv-01117-GSA-PC 12 ORDER RE PLAINTIFF’S NOTICE OF Plaintiff, VOLUNTARY DISMISSAL UNDER 13 RULE 41 vs. (ECF No. 4.) 14 ALL YE JUDGES OF THE ORDER DIRECTING CLERK TO CLOSE 15 COURTS, et al., FILE 16 Defendants. 17 18 19 20 21 22 23 Rebekah Sue Steele (“Plaintiff”) is a jail inmate proceeding pro se with this civil rights 24 action pursuant to 42 U.S.C. § 1983. On August 25, 2022, Plaintiff filed the Complaint 25 commencing this action. (ECF No. 1.) 26 On October 25, 2022, Plaintiff filed a Motion for Dismissal of this Matter which the court 27 construes as a notice of voluntary dismissal of this case under Rule 41 of the Federal Rules of 28 Civil Procedure. (ECF No. 24.) Plaintiff has a right to voluntarily dismiss this case under Rule 1 41 of the Federal Rules of Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit 2 explained: 3 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 4 judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 5 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 6 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 7 claims, through a Rule 41(a)(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 8 automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is 9 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- 10 Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. 11 12 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 13 or motion for summary judgment in this case. Therefore, Plaintiff’s notice of dismissal is 14 effective and this case shall be closed. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 17 2. This case is DISMISSED in its entirety without prejudice; and 18 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 19 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 20 IT IS SO ORDERED. 21 22 Dated: October 26, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28