DeVoid v. Wasco State Prison et al
Filing
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ORDER GRANTING 25 Motion for Dismissal, Action DISMISSED with Prejudice signed by Judge Oliver W. Wanger on 6/21/2011. CASE CLOSED. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAMIEN DeVOID,
Plaintiff,
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Case No. 1:09-cv-00015-OWW-GBC (PC)
ORDER GRANTING MOTION FOR
DISMISSAL, ACTION DISMISSED WITH
PREJUDICE
v.
D. HERNANDEZ, et al.,
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Defendants.
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_______________________________/
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CLERK TO CLOSE CASE
ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s First Amended
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Complaint, filed September 28, 2009 (ECF No. 7), alleging Eighth Amendment violations
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against Defendants M. Mulkern and M. Pasion. (ECF No. 8.) On March 22, 2010,
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Defendants filed an Answer and, on January 31, 2011, filed a Motion for Summary
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Judgment. (ECF Nos. 16 & 20.) After being ordered to respond (ECF No. 21) and
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receiving an extension of time (ECF No. 24), on May 12, 2011 Plaintiff filed a notice stating
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that he would no longer like to pursue this suit. (ECF No. 25.) On May 16, 2011,
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Defendants filed a Statement of Non-Opposition to Plaintiff’s Notice. (ECF No. 26.)
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In response to Plaintiff’s notice, on May 20, 2011, the Court issued a Notice
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informing the parties of its intent to dismiss Plaintiff’s action with prejudice because of the
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stage in proceedings. (ECF No. 27.) Plaintiff was given twenty days to object. (Id.) He
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has filed nothing in response.
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Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action
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prior to service by the defendant of an answer or a motion for summary judgment. Concha
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v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman
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American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)); see also Wilson v. City of San
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Jose, 111 F.3d 688, 692 (9th Cir. 1997). Once the defendant serves an answer or a
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motion for summary judgment, however, the plaintiff may no longer voluntarily dismiss
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under Rule 41(a)(1), but must file a motion for voluntary dismissal under Rule 41(a)(2).
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Fed.R.Civ.P. 41(a). Unlike a Rule 41(a)(1) notice of dismissal, a Rule 41(a)(2) motion
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requires court approval. Concha, 62 F.3d at 1506.
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Because Defendants have answered and filed a Motion for Summary Judgment,
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Plaintiff cannot voluntarily dismiss this action under Rule 41(a)(1). Thus, the Court deems
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Plaintiff’s Notice a Motion for Voluntary Dismissal under Rule 41(a)(2), which requires court
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approval.
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Pursuant to Plaintiff’s Motion, the Court HEREBY ORDERS that:
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Plaintiff’s Motion for Voluntary Dismissal under Rule 41(a)(2) is GRANTED;
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2.
This action is DISMISSED WITH PREJUDICE; and
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Clerk to close to case.
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IT IS SO ORDERED.
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Dated:
June 21, 2011
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/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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