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Messer v. U.S. Penitentiary Atwater Food Serv. Dep't

UNITED STATES DISTRICT COURT
Mar 31, 2015
1:13-cv-01300-GSA-PC (E.D. Cal. Mar. 31, 2015)

Opinion

1:13-cv-01300-GSA-PC

03-31-2015

CECIL MESSER, Plaintiff, v. UNITED STATES PENITENTIARY ATWATER FOOD SERVICE DEPARTMENT, et al., Defendants.


ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE 41 (Doc. 27.) ORDER DISMISSING ACTION IN ITS ENTIRETY WITHOUT PREJUDICE ORDER DIRECTING CLERK TO CLOSE FILE

Cecil Messer ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed the Complaint commencing this action on August 16, 2013. (Doc. 1.) On October 15, 2013, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

On March 30, 2015, Plaintiff filed a motion to dismiss this action "upon request from Plaintiff." (Motion, Doc. 27.) Plaintiff states that he "is not knowledgeable enough to continue this arguement (sic)." (Id.)

The court construes Plaintiff's motion as a motion to dismiss 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.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to dismiss this case 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: March 31 , 2015

/s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE


Summaries of

Messer v. U.S. Penitentiary Atwater Food Serv. Dep't

UNITED STATES DISTRICT COURT
Mar 31, 2015
1:13-cv-01300-GSA-PC (E.D. Cal. Mar. 31, 2015)
Case details for

Messer v. U.S. Penitentiary Atwater Food Serv. Dep't

Case Details

Full title:CECIL MESSER, Plaintiff, v. UNITED STATES PENITENTIARY ATWATER FOOD…

Court:UNITED STATES DISTRICT COURT

Date published: Mar 31, 2015

Citations

1:13-cv-01300-GSA-PC (E.D. Cal. Mar. 31, 2015)