Barker v. Hartley

Full title: ANTHONY BARKER, Plaintiff, v. JAMES HARTLEY, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Feb 26, 2015

1:14-cv-00381-LJO-GSA-PC (E.D. Cal. Feb. 26, 2015)

Opinion

1:14-cv-00381-LJO-GSA-PC

02-26-2015

ANTHONY BARKER, Plaintiff, v. JAMES HARTLEY, et al., Defendants.

Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE 41
(Doc. 8.)
ORDER DISMISSING ACTION IN ITS ENTIRETY WITHOUT PREJUDICE ORDER DIRECTING CLERK TO CLOSE FILE

Anthony Barker ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 19, 2014. (Doc. 1.) On January 30, 2015, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 7.) On February 25, 2015, Plaintiff filed the First Amended Complaint. (Doc. 9.)

On February 25, 2015, Plaintiff filed a motion requesting that this case "be held in abeyance, or withdrawn without prejudice." (Doc. 8.) Plaintiff explains that his evaluation and treatment for Valley Fever is ongoing, and he is not prepared to proceed with this litigation at this time.

The Court does not lightly stay litigation, due to the possibility of prejudice to defendants. However, Plaintiff has a right to dismiss this action under Rule 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained:

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, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. 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 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 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 a notice of voluntary dismissal 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 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. Davenport-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.

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer or motion for summary judgment in this action. Therefore, Plaintiff's motion shall be granted and this case shall be dismissed without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to dismiss the complaint is GRANTED;



2. This action is DISMISSED in its entirety without prejudice; and



3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule 41(a).

IT IS SO ORDERED.

Dated: February 26 , 2015

/s/ Lawrence J. O'Neill

UNITED STATES DISTRICT JUDGE