(HC) Christopher Becker v. Warden ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER BECKER, Case No. 1:21-cv-01129-NONE-EPG-HC 12 Petitioner, ORDER TERMINATING PETITIONER’S MOTION TO DISMISS CASE 13 v. ORDER DIRECTING CLERK OF COURT 14 WARDEN, TO CLOSE CASE 15 Respondent. (ECF No. 10) 16 17 Petitioner Christopher Becker is a federal prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. On November 22, 2021, the undersigned 19 issued findings and recommendation recommending dismissal of the petition for failure to state a 20 cognizable claim for federal habeas relief. (ECF No. 8). 21 On November 29, 2021, the Court received the instant motion requesting dismissal of the 22 case. (ECF No. 10). The Court construes the motion as a notice of dismissal. See Castro v. 23 United States, 540 U.S. 375, 381–82 (2003) (courts may recharacterize a pro se motion to “create 24 a better correspondence between the substance of a pro se motion’s claim and its underlying 25 legal basis”); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a 26 duty to construe pro se pleadings and motions liberally). 27 Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff 1 | opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 2 | 41(a)(1)(A)G). Voluntary dismissal under this rule grants a plaintiff an absolute right to dismiss 3 | without prejudice, requires no action on the part of the court, and divests the court of jurisdiction 4 | upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 5 | F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to 6 | Federal Rule of Civil Procedure 41(a)(1)(A)). 7 In this case, Respondent has not served either an answer or a motion for summary 8 | judgment. Thus, Petitioner’s request of dismissal was effective upon filing and without a court 9 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Q). For the sake of clarity, in light 10 | of the notice of dismissal, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion requesting dismissal (ECF No. 10) is TERMINATED; and 12 2. The Clerk of the Court is DIRECTED to CLOSE the case. 13 4 IT IS SO ORDERED. Dated: _ December 9, 2021 [sf ey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28