Fisher v. People

Filing 14

ORDER TERMINATING PETITIONER'S 13 MOTION TO CLOSE CASE AND DIRECTING CLERK OF COURT TO CLOSE CASE signed by Magistrate Judge Stanley A. Boone on 8/7/2017. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY FRANCIS FISHER,
aka SONNY BARGER,
aka GARY DALE BARGER,

Case No. 1:17-cv-00801-DAD- SAB-HC
ORDER TERMINATING PETITIONER’S
MOTION TO CLOSE CASE

Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO CLOSE CASE

v.
PEOPLE,

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(ECF No. 13)
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

19 pursuant to 28 U.S.C. § 2254.
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On August 4, 2017, Petitioner filed the instant motion to close case. (ECF No. 13). The

21 Court construes the motion as a notice of dismissal. See Castro v. United States, 540 U.S. 375,
22 381–82 (2003) (courts may recharacterize a pro se motion to “create a better correspondence
23 between the substance of a pro se motion’s claim and its underlying legal basis”); Bernhardt v.
24 Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se
25 pleadings and motions liberally).
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Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff

27 may dismiss an action without a court order by filing . . . a notice of dismissal before the
28 opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P.

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1 41(a)(1)(A)(i). Voluntary dismissal under this rule requires no action on the part of the court and
2 divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United
3 States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of
4 voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). In this case,
5 Respondent has not served either an answer or a motion for summary judgment. Thus,
6 Petitioner’s notice of dismissal was effective upon filing and without a court order pursuant to
7 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

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9 the motion to close case is TERMINATED and the Clerk of the Court is DIRECTED to CLOSE
10 the case.
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IT IS SO ORDERED.

13 Dated:

August 7, 2017
UNITED STATES MAGISTRATE JUDGE

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