Opinion
1:21-cv-01111-SAB (PC)
02-23-2022
KEITH WRIGHT, Plaintiff, v. STUART SHERMAN, et al., Defendants.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ISSUED ON FEBRUARY 3, 2022
ORDER TERMINATING ACTION PURSUANT TO PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL
(ECF Nos. 12, 13)
Plaintiff Keith Wright is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On February 22, 2022, Plaintiff filed a notice to voluntary dismiss this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. (ECF No. 13.)
Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of Civil Procedure. 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 plaintiffs 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 case. Therefore, Plaintiffs notice of dismissal is effective as of the date it was filed, and this case shall be closed. The Court shall withdraw the Findings and Recommendations issued on February 3, 2022.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and recommendations issued on February 3, 2022, are withdrawn; and
2. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket to reflect voluntary dismissal, without prejudice, of this action pursuant to Rule 41(a).
IT IS SO ORDERED.