Bhamani v. Apker

Filing 9

ORDER granting Petitioner's Motion to Dismiss Action 5 and directing Clerk of Court to close case signed by District Judge Dale A. Drozd on 1/31/2018. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ZAIN BHAMANI,

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Petitioner,

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ORDER GRANTING PETITIONER’S
MOTION TO DISMISS ACTION AND
DIRECTING CLERK OF COURT TO CLOSE
CASE

v.
CRAIG APKER,

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No. 1:17-cv-01572-DAD-JLT (HC)

Respondent.
(Doc. No. 5)
Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2241. On November 30, 2017, the magistrate judge

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assigned to this federal habeas action issued findings and recommendations recommending that

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the pending petition be dismiss for lack of jurisdiction. (Doc. No. 4.) The findings and

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recommendations were served upon all parties and contained notice that any objections thereto

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were to be filed within twenty-one days from the date of service of the findings and

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recommendations. (Id.) To date, no party has filed objections. However, on December 18, 2017,

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petitioner filed a motion to withdraw his petition. (Doc. No. 5.)

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Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff may

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dismiss an action without a court order by filing . . . a notice of dismissal before the opposing

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party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i).

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Voluntary dismissal under this rule requires no action on the part of the court and divests the
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court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475

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Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary

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dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). Rule 41(a)(1) has been

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found to apply in the habeas context where the respondent had not yet filed an answer to the

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petition. See Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993); Williams v. Clarke, 82 F.3d

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270, 273 (8th Cir. 1996); Dean v. Johnson, Case No. CV 15-02971 BRO (RAO), 2016 WL

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1170877, at *1 (C.D. Cal. Mar. 23, 2016).

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In this case, respondent has not served either an answer or a motion for summary

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judgment. Thus, petitioner’s notice of dismissal was effective upon its filing and without a court

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order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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Accordingly:

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1.

Petitioner’s voluntary dismissal of the petition (Doc. No. 5) is granted;

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2.

The petition for writ of habeas corpus is dismissed;

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3.

All other pending motions and matters are rendered moot by this order; and

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4.

The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

January 31, 2018
UNITED STATES DISTRICT JUDGE

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