(HC) Mosley v. Trate ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC D. MOSLEY, Case No. 1:22-cv-00797-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE 13 v. (Doc. No. 18) 14 B.M. TRATE, ORDER MOOTING MOTION TO DISMISS 15 Respondent. (Doc. No. 16) 16 17 18 19 Petitioner Isaac D. Mosley (“Petitioner”), a federal prisoner, is proceeding pro se with a 20 First Amended Petition for writ of habeas corpus under 28 U.S.C. § 2241.1 (Doc. No. 14). 21 Respondent filed a Motion to Dismiss the First Amended Petition for lack of jurisdiction. (Doc. 22 No. 16). Petitioner filed a response to the Motion to Dismiss. (Doc. No. 17). On March 8, 2023, 23 Petitioner filed a request for dismissal without prejudice pursuant to Federal Rule of Civil 24 Procedure 41(a)(1). (Doc. No. 18). 25 Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff may 26 dismiss an action without a court order by filing ... a notice of dismissal before the opposing party 27 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 13). 1 | serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)G@). 2 | Voluntary dismissal under this rule requires no action on the part of the court and divests the 3 | court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475 4 | Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (voluntary dismissal pursuant to Rule 5 | 41(a)(1)(A)@ Is self-executing and requires no further action by court). Rule 41(a)(1) has been 6 | found to apply in the habeas context where the respondent had not yet filed an answer to the 7 | petition. See Bhamani v. Apker, No. 1:17-cv-01572-DAD-JLT (HC), 2018 WL 684896, at *1 8 | (E.D. Cal. Feb. 1, 2018) (“Rule 41(a)(1) has been found to apply in the habeas context where the 9 | respondent had not yet filed an answer to the petition.” (collecting cases)). 10 In this case, Respondent has not served either an answer or a motion for summary 11 || judgment. Thus, Petitioner’s notice of dismissal is effective upon its filing and without a court 12 | order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Q). 13 ACCORDINGLY, it is ORDERED: 14 1. The Clerk of Court shall terminate Respondent’s Motion to Dismiss (Doc. No. 16) as 15 MOOT. 16 2. The Clerk of Court shall CLOSE this case to reflect Petitioner’s notice of voluntary 17 dismissal and terminate all remaining deadlines. 18 | Dated: _ March 10,2023 Mihaw. Wh. foareh Zaskth 20 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28