IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 21, 2011
D. HERNANDEZ, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING MOTION FOR DISMISSAL, ACTION DISMISSED WITH PREJUDICE CLERK TO CLOSE CASE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's First Amended Complaint, filed September 28, 2009 (ECF No. 7), alleging Eighth Amendment violations against Defendants M. Mulkern and M. Pasion. (ECF No. 8.) On March 22, 2010, Defendants filed an Answer and, on January 31, 2011, filed a Motion for Summary Judgment. (ECF Nos. 16 & 20.) After being ordered to respond (ECF No. 21) and receiving an extension of time (ECF No. 24), on May 12, 2011 Plaintiff filed a notice stating that he would no longer like to pursue this suit. (ECF No. 25.) On May 16, 2011, Defendants filed a Statement of Non-Opposition to Plaintiff's Notice. (ECF No. 26.)
In response to Plaintiff's notice, on May 20, 2011, the Court issued a Notice informing the parties of its intent to dismiss Plaintiff's action with prejudice because of the stage in proceedings. (ECF No. 27.) Plaintiff was given twenty days to object. (Id.) He has filed nothing in response.
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)); see also Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Once the defendant serves an answer or a motion for summary judgment, however, the plaintiff may no longer voluntarily dismiss under Rule 41(a)(1), but must file a motion for voluntary dismissal under Rule 41(a)(2). Fed.R.Civ.P. 41(a). Unlike a Rule 41(a)(1) notice of dismissal, a Rule 41(a)(2) motion requires court approval. Concha, 62 F.3d at 1506.
Because Defendants have answered and filed a Motion for Summary Judgment, Plaintiff cannot voluntarily dismiss this action under Rule 41(a)(1). Thus, the Court deems Plaintiff's Notice a Motion for Voluntary Dismissal under Rule 41(a)(2), which requires court approval.
Pursuant to Plaintiff's Motion, the Court HEREBY ORDERS that:
1. Plaintiff's Motion for Voluntary Dismissal under Rule 41(a)(2) is GRANTED;
2. This action is DISMISSED WITH PREJUDICE; and
3. Clerk to close to case.
IT IS SO ORDERED.
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