(PC) Cabrera v. CA Correctional Health Care Services

Opinion

3 4

11 OMAR CABRERA, 1:22-cv-00025-JLT-GSA (PC)

12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF DISMISSAL 13 vs. (ECF No. 18.)

14 CALIFORNIA CORRECTIONAL ORDER DISMISSING DEFENDANT HEALTH CARE SERVICES, et al., KIRKLAND FROM THIS CASE UNDER 15 RULE 41 Defendants. 16 ORDER DENYING DEFENDANT

17 KIRKLAND’S PENDING MOTIONS AS MOOT 18 (ECF Nos. 7, 8.)

19 ORDER FOR CLERK TO TERMINATE DEFENDANT KIRKLAND FROM THE

21 Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 22 1983. On May 31, 2016, Plaintiff filed a motion to voluntarily dismiss Defendant Kirkland from 23 this case under Rule 41(a)(2) of the Federal Rules of Civil Procedure. (ECF No. 18.) The Court 24 construes Plaintiff’s motion as a notice of dismissal under Rule 41(a)(1). In Wilson v. City of 25 San Jose, the Ninth Circuit explained: 26 Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss 27 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 28 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 defendants service of an answer or motion for summary 1 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 2 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 3 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 4 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- 5 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. 7 || Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). 8 In this case, no Defendant has filed an answer or a motion for summary judgment. 9 || Therefore, Plaintiffs notice of dismissal is effective, and Defendant Kirkland is dismissed from 10 || this case without prejudice. In addition, Defendant Kirkland’s pending motions, filed on February 11 |] 11, 2022 and February 14, 2022, shall be denied as moot. (ECF Nos. 7, 8.) 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's motion to dismiss Defendant Kirkland from this action under Rule 14 41(a)(2), filed on April 4, 2022, is construed as a notice of dismissal under Rule 15 4l(a)(1); 16 2. Plaintiff's notice of dismissal is effective as of the date it was filed; 17 3. Defendant Kirkland is dismissed from this case, without prejudice, under Rule 18 41(a)(1); 19 4. Defendant Kirkland’s pending motion to dismiss and motion for administrative 20 relief, filed on February 11, 2022 and February 14, 2022, respectively, are denied 21 as moot; and 22 5. The Clerk of the Court shall indicate on the docket that Defendant Kirkland is 23 dismissed from this case. 24 IT IS SO ORDERED. 26 Dated: _ April 6, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 4 28