Opinion
Case No. 1:20-cv-01516-AWI-SAB-HC
12-11-2020
WILLIE LEE MITCHELL, JR., Petitioner, v. GEORGE JAIME, Respondent.
ORDER TERMINATING PETITIONER'S MOTION TO DISMISS ORDER DIRECTING CLERK OF COURT TO FILE § 1983 COMPLAINT IN NEW CASE AND CLOSE HABEAS PROCEEDING (ECF No. 7)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 16, 2020, the Magistrate Judge issued findings and recommendation recommending dismissal of the petition. (ECF No. 6).
On December 8, 2020, Petitioner filed the instant motion to dismiss the habeas corpus petition and to file a 42 U.S.C. § 1983 complaint. (ECF No. 7). Attached to the motion is a civil rights complaint. (ECF No. 7 at 4-107). The Court construes the motion to dismiss as a notice of dismissal. See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to "create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis"); Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally).
Page numbers refer to the ECF page numbers stamped at the top of the page.
Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, "the plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(i). Voluntary dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). In this case, Respondent has not served either an answer or a motion for summary judgment. Thus, Petitioner's notice of dismissal was effective upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
For the sake of clarity, in light of the notice of dismissal, IT IS HEREBY ORDERED that:
1. Petitioner's motion to dismiss (ECF No. 7) is TERMINATED; and
2. The Clerk of Court is DIRECTED to:
IT IS SO ORDERED. Dated: December 11 , 2020a. File the attachment to the motion to dismiss (ECF No. 7 at 4-107) as a § 1983 complaint in a new case; and
b. CLOSE the instant habeas proceeding.
/s/_________
UNITED STATES MAGISTRATE JUDGE