Lewis v. CA Dept Corrections, et al

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/14/13 ordering that within 14 days of the date of this order, respondents may file and serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 41 (a)(1)(A)(ii). In the event respondents so stipulate, the court will construe the parteies filings as a stipulation of dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY LEWIS,
Petitioner,

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vs.

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No. 2:04-cv-1136 JAM EFB P

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Respondents.

ORDER

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/
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Petitioner moves to dismiss this action. Dckt. No. 27. Subject to exceptions

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not applicable here, a petitioner may voluntarily dismiss an action without a court order by

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filing:
(I)

a notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment; or

(ii)

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a stipulation of dismissal signed by all parties who have appeared.

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Fed. R. Civ. P. 41(a)(1)(A)(I), (ii). Before petitioner moved to dismiss his case, respondents

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filed an answer to the petition. Dckt. No. 20. Therefore, this action cannot be dismissed

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pursuant to Rule 41(a)(1)(A)(I). However, respondents may choose to stipulate to dismissal
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without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should respondents decline to stipulate as

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such, the court may dismiss this action based on petitioner’s request, “on terms that the court

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considers proper.” Fed. R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that within 14 days of the date of this order, respondents

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may file and serve a document stipulating to dismissal of this action without prejudice pursuant

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to Rule 41(a)(1)(A)(ii). In the event respondents so stipulate, the court will construe the parties’

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filings as a stipulation of dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).

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Dated: May 14, 2013.

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