Yang v. Secretary, Department of Homeland Security et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED (Written Opinion). Signed by Judge Wilhelmina M. Wright on 11/14/2017. (TJB) cc: Ge Yang. Modified on 11/14/2017 (lmb).

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Ge Yang, Case No. 17-cv-3664 (WMW/FLN) Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED v. Secretary, Department of Homeland Security; Jefferson Sessions, Attorney General; Scott Baniecke, ICE Field Office Director; and Kurt Freitag, Freeborn County Sherriff, Defendants. This matter is before the Court on the October 6, 2017 Report and Recommendation (R&R) of United States Magistrate Judge Franklin L. Noel. (Dkt. 7.) The R&R recommends dismissing with prejudice Petitioner Ge Yang’s petition for a writ of habeas corpus as moot. Because no objections have been filed, this Court reviews the R&R for clear error. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Having reviewed the R&R, the Court finds no clear error in the recommendation that Yang’s petition be dismissed as moot. Because a district court lacks subject-matter jurisdiction over a case that is moot, however, the case may not be dismissed with prejudice. See Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 739 (8th Cir. 2005) (“Questions of mootness are matters of subject matter jurisdiction . . . .”); Cty. of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (“A district court is generally barred from dismissing a case with prejudice if it concludes subject matter jurisdiction is absent.”). Accordingly, the Court adopts the R&R as modified so as to dismiss this action without prejudice. Based on the R&R and all the files, records and proceedings herein, IT IS HEREBY ORDERED: 1. The October 6, 2017 R&R, (Dkt. 7), is ADOPTED AS MODIFIED; 2. Petitioner Ge Yang’s petition under 28 U.S.C. § 2241 for a writ of habeas corpus, (Dkt. 1), is DENIED AS MOOT; and 3. This action is DISMISSED WITHOUT PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: November 14, 2017 s/Wilhelmina M. Wright Wilhelmina M. Wright United States District Judge 2

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