Collins v. Soto

Full title: JESSE COLLINS, Petitioner, v. J. SOTO, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 30, 2015

Case No.: 1:15-cv-00559-JLT (E.D. Cal. Jul. 30, 2015)

Opinion

Case No.: 1:15-cv-00559-JLT

07-30-2015

JESSE COLLINS, Petitioner, v. J. SOTO, Respondent.

Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

ORDER CLOSING CASE IN LIGHT OF PETITIONER'S RULE 41(a) NOTICE OF DISMISSAL

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 22, 2015, Petitioner filed a request to withdraw his 28 U.S.C. § 2254 petition for writ of habeas corpus. Although Petitioner cites no rule, the Court construes the request as a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i), which, in relevant part, reads as follows:

(A)...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; or (ii) a stipulation of dismissal signed by all parties who have appeared....(B) Unless the notice or stipulation states otherwise, the dismissal is without prejudice.

In Wilson v. City of San Jose, the Ninth Circuit explained:

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 judgment. Concha v. Longon, 62 F.3d 1493, 1506 (9^th cir. 1995)(citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9^th Cir. 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 judgment. The dismissal is effective on filing and no court order is required. Id.

Wilson v. City of San Jose, 111 F. 3d 688, 692 (9^th Cir. 1997).

No responsive pleadings have been filed in this case and it appears that no such answers or summary judgment motions have been served. Because Petitioner has exercised his right to voluntarily dismiss his petition under Rule 41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692.

Therefore, it is HEREBY ORDERED that the Clerk of the Court is DIRECTED to close this case in light of Petitioner's Rule 41(a)(1)(A)(i) requested dismissal. IT IS SO ORDERED.

Dated: July 30 , 2015

/s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE