Ersch v. Scarantino

Filing 11

ORDER DISMISSING CASE. Signed by Honorable Timothy D. DeGiusti on 7/29/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DONNIE RAY ERSCH, JR.,
Petitioner,
v.
THOMAS SCARANTINO, Warden,
Respondent.

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Case No. CIV-15-749-D

ORDER OF DISMISSAL
Petitioner, a federal prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. The matter was referred to United States Magistrate Judge Gary M.
Purcell pursuant to 28 U.S.C. § 636(b)(1)(B) for initial proceedings. Magistrate Judge Purcell issued
a Report and Recommendation [Doc. No. 7] and recommended that the Petition be transferred in
part and dismissed in part.
Thereafter, Petitioner moved to dismiss the Petition without prejudice pursuant to Rule 41
of the Federal Rules of Civil Procedure. See Motion [Doc. No. 10]. Petitioner filed his motion prior
to the deadline for objecting to the Report and Recommendation.
Under established Tenth Circuit precedent, “[u]nder Rule 41(a)(1)(i), a plaintiff has the
absolute right to dismiss without prejudice and no action is required on the part of the court.”
Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003). As the court of appeals has explained,
“once a Rule 41(a)(1) dismissal has been filed, ‘the district court loses jurisdiction over the
dismissed claims and may not address the merits of such claims or issue further orders pertaining
to them.’” Id. at 1000 (quoting Duke Energy Trading & Mktg. L.L.C. v. Davis, 267 F.3d 1042, 1049
(9th Cir. 2001)); see also Netwig v. Georgia Pacific Corp., 375 F.3d 1009, 1011 (10th Cir. 2004).

The Tenth Circuit has applied Rule 41(a) in habeas cases. See Ohlander v. Larson, 114 F.3d 1531,
1536-37 (10th Cir. 1997); Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993). Here, because no
respondent has answered or filed a motion for summary judgment, no order of the Court is needed
for Petitioner to dismiss his action. Petitioner’s filing, which states that he wants the case dismissed,
effectuated the dismissal. See Janssen, 321 F.3d at 1000; Netwig, 375 F.3d at 1010.
IT IS THEREFORE ORDERED that the Clerk of Court shall terminate this action effective
July 20, 2015, upon Petitioner’s filing of his motion for voluntary dismissal [Doc. No. 10].
IT IS SO ORDERED this 29th day of July, 2015.

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