(HC) Upshaw v. CSP Los Angeles ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WILLIAM UPSHAW, Case No. 1:22-cv-00898-SAB-HC 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER COPY OF 13 v. PETITION AND CLOSE CASE 14 CSP LOS ANGELES, 15 Respondent. 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 On July 25, 2022, the Court ordered Petitioner to show cause why the petition should not 20 be dismissed for failure to exhaust state court remedies. (ECF No. 4.) On August 11, 2022, 21 Petitioner filed his response, stating that he was attempting to file the petition in the California 22 Supreme Court. Petitioner requests that the Court return the petition along with the address of the 23 California Supreme Court.1 (ECF No. 6.) 24 The Court construes Petitioner’s response to the order to show cause as a notice of 25 dismissal. See Castro v. United States, 540 U.S. 375, 381–82 (2003) (courts may recharacterize a 26 pro se motion to “create a better correspondence between the substance of a pro se motion’s 27 1 According to the California Courts website, the mailing address of the Supreme Court of California is 350 1 | claim and its underlying legal basis”); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th 2 | Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally). Pursuant to 3 | Rule 41(a)(1)(A)Q) of the Federal Rules of Civil Procedure, “the plaintiff may dismiss an action 4 | without a court order by filing . . . a notice of dismissal before the opposing party serves either an 5 | answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). Voluntary dismissal 6 | under this rule requires no action on the part of the court and divests the court of jurisdiction 7 | upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 8 | F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to 9 | Federal Rule of Civil Procedure 41(a)(1)(A)). In this case, Respondent has not served either an 10 | answer or a motion for summary judgment. Thus, Petitioner’s notice of dismissal was effective 11 | upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(). 12 For the sake of clarity, in light of the notice of dismissal, IT IS HEREBY ORDERED that 13 | the Clerk of the Court is DIRECTED to: 14 1. Send Petitioner a copy of his petition for writ of habeas corpus; and 15 2. Close the case. 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: _ August 26, 2022 _ Oe 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28