Opinion
Case No. 1:17-cv-00801-DAD- SAB-HC
08-07-2017
GARY FRANCIS FISHER, aka SONNY BARGER, aka GARY DALE BARGER, Petitioner, v. PEOPLE, Respondent.
ORDER TERMINATING PETITIONER'S MOTION TO CLOSE CASE ORDER DIRECTING CLERK OF COURT TO CLOSE CASE (ECF No. 13)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On August 4, 2017, Petitioner filed the instant motion to close case. (ECF No. 13). The Court construes the motion as a notice of dismissal. See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to "create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis"); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally).
Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, "the plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(i). Voluntary dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). In this case, Respondent has not served either an answer or a motion for summary judgment. Thus, Petitioner's notice of dismissal was effective upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
For the sake of clarity, in light of the notice of dismissal, IT IS HEREBY ORDERED that the motion to close case is TERMINATED and the Clerk of the Court is DIRECTED to CLOSE the case. IT IS SO ORDERED. Dated: August 7 , 2017
/s/_________
UNITED STATES MAGISTRATE JUDGE