Puckett v. Steadman et al
Filing
13
ORDER granting 12 Motion to Dismiss signed by Magistrate Judge Gary S. Austin on 5/13/2010. CASE CLOSED.(Lundstrom, T)
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1 2 3 4 5 6 7 8 9 10 11 12 Plaintiff, 13 v. 14 T. W. STEADMAN, et al., 15 ORDER DIRECTING CLERK TO CLOSE FILE 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Durrell Anthony Puckett ("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 on December 10, 2009. (Doc. 1.) On December 23, 2009, plaintiff consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 8.) 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 May 11, 2010, plaintiff filed a motion to voluntarily dismiss this lawsuit so that he can further exhaust state remedies. (Doc. 12.) /// /// 1 Defendants. / ORDER DISMISSING ACTION IN ITS ENTIRETY WITHOUT PREJUDICE DURRELL ANTHONY PUCKETT, 1:09-cv-02147-GSA-PC ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE 41 (Doc. 12.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
1 In Wilson v. City of San Jose, the Ninth Circuit explained: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 6i0kij 21 22 23 24 25 26 27 28 2 IT IS SO ORDERED. Dated: 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, 60910 (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. DavenportHarris 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. 2. 3. Plaintiff's motion to dismiss the complaint is GRANTED; This action is DISMISSED in its entirety without prejudice; and 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).
May 13, 2010
/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE
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