McNeil v. Yates

Full title: MICHAEL McNEIL, Plaintiff, v. JAMES YATES, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 6, 2012

1:10-cv-01745-AWI-GSA-PC (E.D. Cal. Jul. 6, 2012)

Opinion

1:10-cv-01745-AWI-GSA-PC

07-06-2012

MICHAEL McNEIL, Plaintiff, v. JAMES YATES, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS

PURSUANT TO RULE 41

(Doc. 14.)

ORDER DISMISSING ACTION IN ITS

ENTIRETY WITHOUT PREJUDICE

ORDER DIRECTING CLERK TO CLOSE FILE

Plaintiff Michael McNeil ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 23, 2010. (Doc. 1.)

On July 5, 2012, plaintiff filed a motion to voluntarily dismiss this action pursuant to Rule 41(a), without prejudice. (Doc. 14.)

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, this case has terminated.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to dismiss this action 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.

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CHIEF UNITED STATES DISTRICT JUDGE