Opinion
1:07-cv-01412-LJO-SMS PC.
April 28, 2011
Melissa Fairfield ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was filed on September 27, 2007. A first amended complaint was filed on August 7, 2008. (ECF No. 13.) On February 18, 2010, the first amended complaint was dismissed with leave to amend for failure to state a claim. (ECF No. 15.) Asecond amended complaint was filed on March 15, 2010. (ECF No. 16.) On November 2, 2010, findings and recommendations were issued dismissing certain claims and an order adopting was filed on February 22, 2011. (ECF Nos. 18, 19.) On March 16, 2011 anorder issued directing the United States Marshal to serve the second amended complaint. (ECF No. 22.) On April 27, 2011, Plaintiff filed a notice of voluntary dismissal. (ECF No. 24.)
"[U]nder Rule 41(a)(1)(I), `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.'"Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). "[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can't complain, and the district court lacks jurisdiction to do anything about it." Id. at 1078. No defendant has filed an answer or other responsive pleading in this action.
Accordingly it is HEREBY ORDERED that:
1. The Clerk's Office is to CLOSE the file in this case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule 41(a);
2. The order to serve is RECALLED; and
3. The Clerk's Office is directed to serve a copy of this order on the United States Marshals Service in Sacramento.
IT IS SO ORDERED.