1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH HETZEL, Case No. 1:23-cv-01015-JLT-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 v. (ECF No. 9) 14 LOMELI, 15 Defendant. 16 17 Plaintiff Joseph Hetzel (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 18 action under

. 19 This action was removed from Kern County Superior Court on July 6, 2023. (ECF No. 1.) 20 The filing fee was paid by Defendant the same date. On July 18, 2023, the Court screened 21 Plaintiff’s complaint and granted Plaintiff leave to file a first amended complaint or a notice of 22 voluntary dismissal. (ECF No. 6.) 23 On August 8, 2023, Plaintiff filed a “Request for Dismissal of Case and Dismissal of 24 Filing Fees.” (ECF No. 7.) The Court granted Plaintiff an opportunity to file a response to clarify 25 his intent, and informed Plaintiff that a voluntary dismissal of this action would also result in the 26 dismissal of the claims Plaintiff originally filed in Superior Court. (ECF No. 8.) 27 On August 28, 2023, Plaintiff filed a notice of voluntary dismissal together with a motion 28 to proceed in forma pauperis. (ECF No. 11.) 1 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 2 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 3 Space Mgmt. Co., Inc. v. Boeing Co., Inc.,

(9th Cir. 1999) (quotation and 4 citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is 5 required, the parties are left as though no action had been brought, the defendant can’t complain, 6 and the district court lacks jurisdiction to do anything about it.”

. Defendant did not 7 file an answer in this Court, and it does not appear that Defendant filed an answer before the 8 action was removed from state court. 9 As Plaintiff did not specify whether the dismissal is with or without prejudice, the Court 10 finds that a dismissal without prejudice is appropriate. Fed. R. Civ. P. 41(a)(2). 11 Accordingly, this action is terminated, without prejudice, by operation of law without 12 further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i). The Clerk of the Court is directed to 13 terminate all pending motions and deadlines, including the motion to proceed in forma pauperis, 14 and close this case. 15 IT IS SO ORDERED. 16

17 Dated: August 29, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18

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