Opinion
Civil Action 5:23-cv-165 (MTT)
07-20-2023
SCOTT LYONS, Petitioner, v. Warden SEAN EMMONS, Respondent.
ORDER
MARC T. TREADWELL, UNITED STATES DISTRICT COURT CHIEF JUDGE
On July 14, 2023, petitioner Scott Lyons filed a “motion to strike,” requesting the Court “strike this habeas corpus, allowing him to proceed ... at the state court level.” Doc. 7 at 1. The Court construes Lyons' motion as a request to voluntarily dismiss.
Because the time for service has not yet arrived, and pursuant to Federal Rule of Civil Procedure 41(a)(1)(A), Lyons was permitted to voluntarily dismiss his petition without court order.In any event, “a voluntary dismissal [under Rule 41(a)(2)] should be granted unless the defendant will suffer clear legal prejudice.” Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001) (cleaned up). Here, Lyons requests dismissal of his petition to “exhaust his steps in the state courts.” Doc. 7 at 1. That reason, as well as the absence of any prejudice, are sufficient to grant his request for a voluntary dismissal.
Rule 12 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”
To the extent Lyons requests that the Court allow him to proceed in forma pauperis in state court, it is not within the Court's authority to do so. Doc. 7 at 1.
Accordingly, Lyons' motion to voluntarily dismiss (Doc. 7) is GRANTED. This case is DISMISSED without prejudice. United States Magistrate Judge Stephen Hyles' Report and Recommendation (Doc. 6) is TERMINATED as moot.
SO ORDERED.