Opinion
Case No. CV 15-6288-SVW (SP)
08-15-2016
DRACY LAMONT McKNEELY, Petitioner, v. JACK FOX, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Petitioner has not filed any written Objections to the Report within the time permitted. The Court accepts the findings and recommendation of the Magistrate Judge.
In addition, the Court has reviewed petitioner's motion to voluntarily dismiss the Petition, which he filed following the issuance of the Report and Recommendation. Petitioner states he no longer has time to pursue this matter, and further states he will not file another petition with respect to the issue he raised in this matter. But because this Petition already has been fully litigated, the Court finds no basis to dismiss the matter without a ruling on the merits, and accordingly denies petitioner's request for voluntary dismissal. See Terronova v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) ("since the magistrate judge had already issued his report and recommendation when the motion [for voluntary dismissal] was filed, the district court's refusal to use its discretion to dismiss the [habeas] petition under Fed. R. Civ. P. 41(a)(2) is reasonable"). Although motions for voluntary dismissal should generally be granted unless there is some plain legal prejudice to the other side (see Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2010)), and although petitioner states he will not raise the issue again, he does not explicitly request that his Petition be dismissed with prejudice. The Court finds no reason to deny the parties a ruling on the merits under these circumstances. See Maxum Indemnity Ins. Co. v. A-1 All American Roofing Co., 299 Fed. Appx. 664, 666 (9th Cir. 2008) ("A district court may consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near-certain adverse ruling.").
IT IS THEREFORE ORDERED that: (1) petitioner's motion to voluntarily dismiss the Petition (docket no. 10) is denied; and (2) Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: August 15, 2016
/s/_________
HONORABLE STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE