(PC) Murphy v. Fleming

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS MURPHY, 1:23-cv-01164-ADA-GSA-PC 12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ISSUED 13 vs. ON SEPTEMBER 8, 2023 14 FLEMING, et al., (ECF No. 10.) 15 Defendants. ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT 16 PREJUDICE UNDER RULE 41 17 (ECF No. 11.) 18 ORDER DIRECTING CLERK TO 19 CLOSE FILE 20 21 22 23 I. BACKGROUND 24 Douglas Murphy (“Plaintiff”) is a county jail inmate proceeding pro se with this civil 25 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action 26 on July 26, 2023, at the United States District Court for the Eastern District of Pennsylvania. 27 (ECF No. 1.) On August 4, 2023, the case was transferred to this court. (ECF No. 5.) 28 1 On September 18, 2023, Plaintiff filed a motion to voluntarily dismiss this case without 2 prejudice, which the Court construes as a notice of voluntary dismissal under Rule 41. (ECF 3 No. 11.) 4 II. RULE 41 5 Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules 6 of Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 7 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 8 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. 9 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant’s service of an answer or motion for summary 10 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 11 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 12 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 13 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- 14 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. 15 16 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 17 or motion for summary judgment in this case. Therefore, Plaintiff’s notice of dismissal is 18 effective, and this case shall be closed. 19 In light of the fact that Plaintiff has requested voluntarily dismissal of this case, the Court 20 shall withdraw the pending findings and recommendations to dismiss this case issued on 21 September 8, 2023. (ECF No. 10.) All other pending motions shall be denied as moot. 22 III. CONCLUSION 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The Court’s findings and recommendations to dismiss this case, issued on 25 September 8, 2023, are WITHDRAWN; 26 2. Plaintiff’s notice of dismissal, filed on September 18, 2023, is effective the date 27 the notice of dismissal was filed; 28 3. This case is DISMISSED in its entirety, without prejudice; 1 4. All other pending motions are DENIED as moot; and 2 5. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 3 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 4 IT IS SO ORDERED. 5 6 Dated: September 20, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28