IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 4, 2012
YOLANDA ARREOLA, PLAINTIFF,
COUNTY OF LASSEN, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On March 9, 2012, plaintiff Yolanda Arreola, who is proceeding without counsel, filed this action under 42 U.S.C. § 1983 against defendants High Desert State Prison ("HDSP"), California Department of Corrections and Rehabilitation, the State of California, Mike McDonald (the Warden at HDSP), C. Gripp, B. Fleming, and P. Fackrell (sworn correctional officers at HDSP) (collectively the "California State Defendants"); defendant County of Lassen; and defendant Ricardo Garcia (an inmate at HDSP). (Dkt. No. 1.)*fn1 Plaintiff, individually and as executor of the estate of Juan Vega, asserted numerous causes of action for alleged constitutional violations arising out of the murder of her brother as an inmate at HDSP. (Id.)
Pending before the court are motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the California State Defendants and defendant County of Lassen. (Dkt. Nos. 10, 11.)*fn2 Because plaintiff initially failed to file an opposition to the pending motions to dismiss, the court on November 5, 2012 continued the hearing on the pending motions to December 13, 2012, and provided plaintiff with an additional opportunity to file an opposition or statement of non-opposition to the pending motions on or before November 29, 2012. (Dkt. No. 14.)
However, on November 30, 2012, plaintiff filed a response to the court's November 5, 2012 order indicating that she would like to dismiss the case against defendants without prejudice. (Dkt. No. 15.) The court construes plaintiff's filing as a notice of voluntary dismissal of this case without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Federal Rule of Civil Procedure 41(a)(1)(A) provides that "the plaintiff may dismiss an action without a court order by filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . ." "Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). The dismissal is effective on filing and no court order is required...Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (internal citations omitted); see also United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no action on the part of the court and divests the court of jurisdiction once the notice of voluntary dismissal is filed).
Because defendants have not yet served an answer or motion for summary judgment in this case, plaintiff's request for dismissal is effective without a court order.
Accordingly, for purposes of clarity, IT IS HEREBY ORDERED that:
1. The action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
2. The pending motions to dismiss (dkt. nos. 10, 11) are DENIED AS MOOT.
3. The Clerk of Court is directed to close this case and vacate all dates. IT IS SO ORDERED.