1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY LEWIS JONES, T53643, Case No. 19-cv-05981-CRB (PR)

8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO VOLUNTARY DISMISS 9 v. WITHOUT PREJUDICE

10 M. SANDOVAL, (ECF Nos. 18 & 22) 11 Defendant(s).

12 Plaintiff moves to voluntarily dismiss this action without prejudice following defendant’s 13 motion for summary judgment on grounds that plaintiff failed to properly exhaust available 14 administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). Plaintiff seeks 15 dismissal without prejudice so he can refile after properly exhausting under § 1997e(a). 16 It is well established that a plaintiff has the absolute right to dismiss without prejudice his 17 or her action by filing a notice of dismissal “at any time before service by the adverse party of an 18 answer or of a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1). But after service of an 19 answer or of a motion for summary judgment (and if no stipulation of dismissal is obtained), the 20 plaintiff must obtain court approval to dismiss and the court must consider whether the dismissal 21 should be with or without prejudice. See Fed. R. Civ P. 41(a)(2); Hamilton v. Firestone Tire & 22 Rubber Co.,

(9th Cir. 1982). 23 Under the law of the circuit, a successful motion for summary judgment for failure to 24 properly exhaust available administrative remedies under § 1997e(a) results in a dismissal without 25 prejudice to refiling after properly exhausting. See Wyatt v. Terhune,

(9th 26 Cir. 2003) (“If the district court concludes that the prisoner has not exhausted nonjudicial 27 remedies, the proper remedy is dismissal of the claim without prejudice.”), overruled on other 1 without prejudice plaintiff seeks here so he can refile after properly exhausting consequently 2 || appears both just and proper. Plaintiff’s motion (ECF No. 22) for voluntarily dismissal without 3 || prejudice is GRANTED and the instant action is DISMISSED WITHOUT PREJUDICE. 4 The clerk is instructed to close the file and terminate all pending motions (see ECF No. 18) 5 || as moot. 6 IT IS SO ORDERED. 7 || Dated: July 23, 2020 CHARLES R. BREYER 9 United States District Judge 10 11 g 12

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