Effinger v. Director, TDCJ-CID

Filing 9

MEMORANDUM ORDER AND OPINION re 8 Notice of Voluntary Dismissal filed by Michael Effinger. ORDERED Plaintiff's "Special Request" (Dkt. #8) is self-effectuating and terminates the case in and of itself, and the case is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). All motions by any party not previously ruled upon are DENIED. Signed by District Judge Richard A. Schell on 6/19/2018. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MICHAEL EFFINGER, #01730017
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:17cv834

MEMORANDUM ORDER AND OPINION
Pro se Petitioner Michael Effinger filed the above-styled and numbered petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1). On December 4, 2017, United States
Magistrate Judge Kimberly C. Priest Johnson issued an Order requiring Petitioner to show cause
as to why his petition should not be dismissed as either time-barred or premature. See Dkt. #3.
Subsequently, on December 15, 2017, Petitioner filed a response to the Order. Dkt. #5. On April
9, 2018, the Magistrate Judge issued a Report and Recommendation, recommending the petition
be dismissed. See Dkt. #6. On April 25, 2018, however, Petitioner filed a “Special Request” (Dkt.
#8). In his “Special Request,” Petitioner states he wishes to withdraw his § 2254 petition because
he now understands his § 2254 petition to be “erroneous and premature[.]” See Dkt. #8 at 1.
Voluntary dismissals are governed by Federal Rule of Civil Procedure 41(a)(1)(A),
providing, in pertinent part, “the [petitioner] may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary
judgment.” “Unless the notice . . . states otherwise, the dismissal is without prejudice.” Fed. R.
Civ. P. 41(a)(1)(B). The notice of dismissal is self-effectuating and terminates the case in and of
itself; no order or other action of the district court is required. In re Amerijet Int’l, Inc., 785 F.3d
967, 973 (5th Cir. 2015) (per curiam). Thus, once a petitioner has moved to dismiss under Rule
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41(a)(1)(A)(i), the case is effectively terminated; the court has no power or discretion to deny
petitioner’s right to dismiss or to attach any condition or burden to that right. Williams v. Ezell,
531 F.2d 1261, 1264 (5th Cir. 1976); In re Amerijet Int’l, Inc., 785 F.3d at 973; Carter v. United
States, 547 F.2d 258, 259 (5th Cir. 1977) (plaintiff has absolute right to dismiss his complaint
under Rule 41(a) prior to the filing of an answer or motion for summary judgment); Ragsdale v.
Classroom Teachers of Dallas, et. al., 2006 WL 3392192 (N.D. Tex. Nov. 15, 2006).
Further, the right to dismiss under Rule 41(a)(1)(A)(i) is not extinguished by the reference
of an action to a Magistrate Judge, even when the Magistrate Judge has previously recommended
dismissal of the case at the time a petitioner seeks to voluntarily dismiss. See Foss v. Federal Int’l
Credit Bank of St. Paul, 808 F.2d 657 (8th Cir. 1986) (notice of dismissal effective even though
Magistrate Judge issued a recommendation that the complaint lacked merit and should be
dismissed); Cooney v. William Robinson Dairy, Inc., 744 F. Supp. 841 (N.D. Ill. 1990) (permitting
voluntary dismissal without prejudice although Magistrate Judge had already recommended a
dismissal on the merits); Matthews v. City of Tyler, Texas, et. al., 2016 WL 633943 (E.D. Tex.
February 17, 2016) (finding request for voluntary dismissal should be granted even where
Magistrate Judge has previously issued a report recommending dismissal); Goodman v. Nationstar
Mortgage, LLC, 2015 WL 845724 (M.D. Tenn. Feb. 26, 2015) (finding right to dismiss not
extinguished by Magistrate Judge’s recommendation to dismiss on merits); Cribbs v. Case, 2012
WL 4356776 (W.D. Mich. Sept. 24, 2012) (declining to consider Magistrate Judge’s
recommendation to dismiss on merits where notice of voluntary dismissal filed).
In the present case, Respondents have not filed an answer; thus, Petitioner is entitled to the
voluntary dismissal of the lawsuit without prejudice. Petitioner’s petition was dismissed the
moment the notice (Dkt. #8) was filed with the clerk. Moreover, after a notice of voluntary
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dismissal is filed, the district court loses jurisdiction over the case. In re Amerijet Int’l, Inc.,
785 F.3d at 973. Accordingly, it is,
ORDERED Plaintiff’s “Special Request” (Dkt. #8) is self-effectuating and terminates the
case in and of itself, and the case is DISMISSED without prejudice pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i). All motions by any party not previously ruled upon are DENIED.

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SIGNED this the 19th day of June, 2018.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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