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Sean C. Fisher v. Director of Cdcr

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 26, 2012

SEAN C. FISHER PLAINTIFF,
v.
DIRECTOR OF CDCR, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. On April 23, 2012, he filed a notice of voluntary dismissal with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1). Under that rule, 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. ... The dismissal is effective on filing and no court order is required." Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.1997). "Unless the notice or stipulation states otherwise, the dismissal is without prejudice." Fed. R. Civ. P. 41(a)(1)(B).

Here, the notice clearly states that this action is dismissed with prejudice. It thus "states otherwise" with respect to the presumption that dismissals under Rule 41(a)(1) are without prejudice. Moreover, plaintiff filed the notice of voluntary dismissal before service of an answer or motion for summary judgment by any defendant. Therefore, plaintiff's dismissal of his case with prejudice was effective when he filed the notice. See J&J Sports Production, Inc. v. George, 2008 WL 2127990 (E.D. Cal.). In that event, the court need not order dismissal of the complaint, but it will direct the Clerk of Court to close the case. Id.

Accordingly, IT IS HEREBY ORDERED that, in light of plaintiff's voluntary dismissal of his action with prejudice pursuant to Fed. R. Civ. P. 41(a)(1), this case be closed.

20120426

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