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Dorian M. Aquino v. C. Smith

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


April 15, 2013

DORIAN M. AQUINO, PLAINTIFF,
v.
C. SMITH, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking injunctive relief pursuant to 42 U.S.C. § 1983.

On December 20, 2012, the court directed service of the complaint on defendants, and, on April 2, 2013, defendants moved to dismiss the complaint. ECF Nos. 10, 19.

Plaintiff has now filed a motion to withdraw his complaint. ECF No. 23. Federal Rule of Civil Procedure 41(a)(1) provides that 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).

Because no answer or motion for summary judgment had been filed when plaintiff filed his motion to dismiss, plaintiff's request is self-executing, and plaintiff's complaint is automatically dismissed pursuant to Federal Rule of Civil Procedure 41(a).

Accordingly, IT IS HEREBY ORDERED that, in light of plaintiff's voluntary dismissal of this action, the Clerk close this case.

20130415

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