Barger v. Kern County Superior Court

Filing 10

ORDER TERMINATING Petitioner's 9 Motion to Close Case; ORDER DIRECTING Clerk of Court to Close Case, signed by Magistrate Judge Stanley A. Boone on 08/15/17. CASE CLOSED (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARY DALE BARGER, 12 Petitioner, ORDER TERMINATING PETITIONER’S MOTION TO CLOSE CASE KERN COUNTY SUPERIOR COURT, ORDER DIRECTING CLERK OF COURT TO CLOSE CASE 13 14 15 Case No. 1:17-cv-01000- SAB-HC v. Respondent. (ECF No. 9) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On August 11, 2017, Petitioner filed the instant motion to close case. (ECF No. 9). The 20 Court construes the motion as a notice of dismissal. See Castro v. United States, 540 U.S. 375, 21 381–82 (2003) (courts may recharacterize a pro se motion to “create a better correspondence 22 between the substance of a pro se motion’s claim and its underlying legal basis”); Bernhardt v. 23 Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se 24 pleadings and motions liberally). 25 Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff 26 may dismiss an action without a court order by filing . . . a notice of dismissal before the 27 opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 28 41(a)(1)(A)(i). Voluntary dismissal under this rule requires no action on the part of the court and 1 1 divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See United 2 States v. 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of 3 voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). In this case, 4 Respondent has not served either an answer or a motion for summary judgment. Thus, 5 Petitioner’s notice of dismissal was effective upon filing and without a court order pursuant to 6 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 7 8 the motion to close case is TERMINATED and the Clerk of the Court is DIRECTED to CLOSE 9 the case. 10 11 IT IS SO ORDERED. 12 Dated: August 15, 2017 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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