Filed: Mar. 26, 2014
Latest Update: Mar. 26, 2014
Summary: ORDER OF DISMISSAL RONALD M. WHYTE, District Judge. On June 4, 2013, petitioner, a California prisoner proceeding pro se , filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. (Docket No. 1.) On October 23, 2013, the court issued an order to show cause. (Docket No. 5.) On December 31, 2013, respondent filed a motion to dismiss. (Docket No. 7.) On January 27, 2014, petitioner filed a notice of voluntary dismissal. (Docket No. 8.) Rule 41 of the Federal Rules of Civil Proc
Summary: ORDER OF DISMISSAL RONALD M. WHYTE, District Judge. On June 4, 2013, petitioner, a California prisoner proceeding pro se , filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. (Docket No. 1.) On October 23, 2013, the court issued an order to show cause. (Docket No. 5.) On December 31, 2013, respondent filed a motion to dismiss. (Docket No. 7.) On January 27, 2014, petitioner filed a notice of voluntary dismissal. (Docket No. 8.) Rule 41 of the Federal Rules of Civil Proce..
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ORDER OF DISMISSAL
RONALD M. WHYTE, District Judge.
On June 4, 2013, petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) On October 23, 2013, the court issued an order to show cause. (Docket No. 5.) On December 31, 2013, respondent filed a motion to dismiss. (Docket No. 7.) On January 27, 2014, petitioner filed a notice of voluntary dismissal. (Docket No. 8.) Rule 41 of the Federal Rules of Civil Procedure grants a party bringing an action the absolute right to dismiss such action by filing a notice of dismissal "at any time before service by the adverse party of an answer or of a motion for summary judgment." See Fed. R. Civ. P. 41(a)(1)(i). Here, respondent has filed a motion to dismiss, but not an answer or a motion for summary judgment. Moreover, there is no basis for a finding of prejudice to respondent from such dismissal; although such dismissal is without prejudice to petitioner's filing a new petition in the future, any untimeliness arguments would, at a minimum, be applicable equally to a new petition filed by petitioner at such later date.
Accordingly, this action is hereby DISMISSED without prejudice
The clerk shall terminate all pending motions and close the file.
IT IS SO ORDERED.
