David Brian Harry v. Matthew McVay

• Court: District Court, C.D. California
• Decided: September 5, 2023
• Docket: 5:23-cv-00910
• Status: Unknown

Opinion

1 JS-6

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 DAVID BRIAN HARRY, Case No. 5:23-00910 AB (ADS)

11 Petitioner,

12 v. ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS 13 MATTHEW MCVAY, Warden, CORPUS

14 Respondent.

15 16 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 17 State Custody (“Petition”) filed by David Brian Harry (“Petitioner”). (Dkt. No. 1.) On 18 July 5, 2023, Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus. 19 (Dkt. No. 8.) No opposition was filed. Instead, on July 31, 2023, Petitioner filed a 20 Repudiation of Authorization to File Habeas Petition in His Behalf (“Repudiation”). 21 (Dkt. No. 11.) The Repudiation asked the Court to dismiss the Petition without 22 prejudice because the Petition was not filed by Petitioner. (Dkt. No. 11 at 2.) On August 23 4, 2023, the Court issued an Order Requiring Response to the Repudiation, if any, by no 24 later than August 18, 2023. (Dkt. No. 12.) Respondent did not file a response. 1 The Court has discretion to dismiss the Petition, as requested in the Repudiation, 2 || pursuant to Federal Rule of Civil Procedure 41(a)(2), which is made applicable to habeas 3 || petitions through Rule 12 of the Rules Governing § 2254 Cases. See FED. R. CIv. P. 4 || 41(a)(2) (“[A]n action may be dismissed at the plaintiff's request . .. by court order, on 5 || terms that the court considers proper.”); Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th 6 || Cir. 1988) (noting district court had discretion whether or not to dismiss petition under 7 || Rule 41(a)(2)); Torres v. Igdaloff, No. 217CVo4059MCSJEM, 2022 WL 17081311, at *1 8 || (C.D. Cal. Aug. 17, 2022) (“Rule 41(a)(2) does not require that the plaintiffs request for g || dismissal take any specific form; it requires only that the court approve such a request 10 || for dismissal.”); see also Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 11 || 831 (9th Cir. 1986) (“District courts have inherent power to control their dockets.”). 12 Dismissing the Petition without prejudice here is proper. Respondent moved to 13 || dismiss the Petition. In response, Petitioner’s Repudiation states the Petition was not 14 || filed by him and requests the Petition be dismissed. 15 IT IS THEREFORE ORDERED that this action be summarily dismissed without 16 || prejudice pursuant to Federal Rule of Civil Procedure 41(a) and Central District of 17 || California Local Rule 7-12. 18 IT IS SO ORDERED. (, 19 || Dated: September 05, 2023 ee THE HONORABLE ANDRE BIROTTE JR. 20 United States District Judge 21 || Presented by: 22 ||_—— /s/ Autumn D. Spaeth _ THE HONORABLE AUTUMN D. SPAETH 23 || United States Magistrate Judge 24