Opinion
No. CIV S-05-2431 MCE DAD P.
September 21, 2007
ORDER
Petitioner is a state prisoner proceeding pro se with a petitio for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 24, 2007, the court filed findings and recommendations recommending that respondent's motion to dismiss this action as barred by the statute of limitations, be granted. On July 12, 2007, petitioner filed a motion to voluntarily dismiss this action due to his medical condition, lack of legal assistance, and inability to file a "reply to respondent's motion[.]" (Pl's Mot. to Dismiss at 2.) The court directed respondent to respond to petitioner's motion. On August 24, 2007, respondent filed a statement of non-opposition to the dismissal of this action but argued that the dismissal should be with prejudice since respondent had already filed a responsive pleading and any subsequent filing by petitioner would be an impermissible second or successive petition. According to Rule 41(a)(1), when a request for voluntary dismissal is made "any time before service by the adverse party of an answer or a motion for summary judgment," the dismissal is without prejudice.
Therefore, IT IS HEREBY ORDERED that:
1. Petitioner's July 12, 2007 motion for voluntary dismissal of this action is granted; and
2. This action is dismissed without prejudice. Fed.R.Civ.P. 41(a)(1); see also Rule 11, Rules Governing Habeas Corpus Cases Under Section 2254.