(HC) Pink v. Gastelo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DVONTAE LAROME PINK, Case No. 1:19-cv-01092-EPG-HC 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE 13 v. (ECF No. 7) 14 JOSIE GASTELO, 15 Respondent. 16 17 Petitioner Dvontae Larome Pink is a state prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 26, 2019,1 the Court ordered 19 Petitioner to show cause why the petition should not be dismissed pursuant to Younger v. Harris, 20 401 U.S. 37 (1971). (ECF No. 6). In response, Petitioner filed a request for dismissal without 21 prejudice. (ECF No. 7). 22 Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff 23 may dismiss an action without a court order by filing . . . a notice of dismissal before the 24 opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 25 41(a)(1)(A)(i). Voluntary dismissal under this rule grants a plaintiff an absolute right to dismiss 26 without prejudice, requires no action on the part of the court, and divests the court of jurisdiction 27 upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 1 | F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to 2 | Federal Rule of Civil Procedure 41(a)(1)(A)). 3 In this case, Respondent has not served either an answer or a motion for summary 4 | judgment. Thus, Petitioner’s request of dismissal was effective upon filing and without a court 5 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(). For the sake of clarity, in light 6 | of the notice of dismissal, IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED 7 | to CLOSE the case. 8 9 IT IS SO ORDERED. 10] Dated: _ September 17, 2019 [Jee ey — ll UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28