(PC) Zamora v. Cates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SANTIAGO MANUEL ZAMORA, 1:23-cv-00375-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT 13 vs. PREJUDICE UNDER RULE 41 (ECF No. 8.) 14 CATES, et al., ORDER DIRECTING CLERK TO CLOSE 15 Defendants. FILE 16 17 18 Santiago Manuel Zamora (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On March 2, 2023, Plaintiff 20 filed the Complaint commencing this action. (ECF No. 1.) 21 On May 3, 2023, Plaintiff filed a motion for voluntary dismissal of this case without 22 prejudice under Rule 41(a) of the Federal Rules of Civil Procedure. (ECF No. 8.) Plaintiff has 23 a right to voluntarily dismiss this case under Rule 41. In Wilson v. City of San Jose, the Ninth 24 Circuit explained: 25 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 26 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. 27 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 28 judgment. The dismissal is effective on filing and no court order is required. Id. 1 The plaintiff may dismiss some or 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- 2 10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of 3 the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for 4 the same cause against the same defendants. Id. (citing McKenzie v. Davenport- Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal 5 leaves the parties as though no action had been brought. Id. 6 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). 7 The Court treats Plaintiff’s motion as a notice of voluntary dismissal without prejudice. 8 As no defendant has filed an answer or motion for summary judgment in this case, Plaintiff’s 9 notice of dismissal is effective, and this case shall be closed. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s notice of dismissal is effective as of the date it was filed; 12 2. This case is DISMISSED in its entirety without prejudice; and 13 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 14 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 15 IT IS SO ORDERED. 16 17 Dated: May 6, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28