(PC) Ayala v. Astorga

• Court: District Court, E.D. California
• Decided: August 9, 2023
• Docket: 1:23-cv-00528
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ARMANDO B. AYALA, No. 1:23-cv-00528-JLT-SAB (PC) 8 Plaintiff, ORDER DIRECTING CLERK OF COURT TO DISMISS ACTION PURSUANT TO 9 v. PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 10 A. ASTORGA, et al., (ECF No. 14) 11 Defendants. 12 13 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 14 to 42 U.S.C. § 1983. 15 On August 8, 2023, Plaintiff filed a motion to dismiss this action pursuant to Federal Rule 16 of Civil Procedure 41. (ECF No. 14.) 17 Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of 18 Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained:

19 Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior 20 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 21 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 22 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 23 some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 24 608, 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. 25 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 26 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 27 brought. Id. 28 1 | Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 2 | or motion for summary judgment in this case. Therefore, Plaintiff's notice of dismissal is 3 | effective, and this case shall be closed. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff's notice of dismissal is effective as of the date it was filed; 6 2. This case is DISMISSED in its entirety without prejudice; and 7 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket 8 to reflect voluntary dismissal of this action pursuant to Rule 41 (a). 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _August 9, 2023 _ UNITED STATES MAGISTRATE JUDGE

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