Allen v. Kenney

Filing 11

MEMORANDUM AND ORDER - Plaintiff shall have until December 1, 2014, to file an objection to the dismissal of this matter. The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: December 1, 2014: Deadline for Plaintiff to file objection. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LLOYD E. ALLEN,
Petitioner,
v.
MICHAEL L. KENNEY,
Respondent.

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4:14CV3197

MEMORANDUM
AND ORDER

This matter is before the court on the parties’ motions to dismiss. For the
reasons discussed below, the court will provide Petitioner Lloyd Allen (“Petitioner”)
until December 1, 2014, to object to dismissal of this action. If no objection is filed,
the court will dismiss this matter without prejudice.
On September 30, 2014, Petitioner filed a Petition for Writ of Habeas Corpus
(Filing No. 1) in this matter in which he challenged his 2011 conviction in Sarpy
County, Nebraska, for terroristic threats with a habitual criminal enhancement. On
October 16, 2014, Respondent filed a Motion to Dismiss or Consolidate (Filing No.
8). Respondent argued this case should be dismissed or consolidated because
Petitioner already has a habeas corpus action pending in this court—Case Number
4:14CV3049—in which he challenges the same judgment of conviction. On October
27, 2014, Petitioner Lloyd Allen mailed to this court a “Motion to Dismiss” (Filing
No. 10) in which he asks “this court to dismiss his Case No. 4:14-CV-3197 at this
time.”
Pursuant to Fed. R. Civ. P. 41, a plaintiff may dismiss an action by filing a
notice of dismissal before the opposing party serves either an answer or a motion for
summary judgment, or by filing a stipulation of dismissal signed by all parties who

have appeared. Fed. R. Civ. P. 41(a)(1). In addition, a court may grant a request for
voluntary dismissal “on terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2).
The court finds that dismissal of this action without prejudice is proper.
However, Allen’s motion seeking dismissal is a photocopy, not the original
document. Thus, out of an abundance of caution, the court will provide Plaintiff until
December 1, 2014, to object to dismissal. If no objection is filed, the court will
dismiss this matter without prejudice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until December 1, 2014, to file an objection to the
dismissal of this matter.
2.
The Clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: December 1, 2014: Deadline for
Plaintiff to file objection.
DATED this 28th day of October, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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