Gary L. Kilbourn v. Warden

• Court: District Court, C.D. California
• Decided: December 7, 2021
• Docket: 2:20-cv-04499
• Status: Unknown

Opinion

1 2

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 GARY L. KILBOURN, Case No. 2:20-cv-04499-ODW (GJS) 12 Petitioner

13 v. ORDER DISMISSING THIS ACTION WITHOUT PREJUDICE 14 WARDEN, PURSUANT TO PETITIONER’S REQUEST [DOCKET NO. 32] 15 Respondent. 16

17 18 On April 5, 2021, Respondent filed an answer to the 28 U.S.C. § 2254 habeas 19 petition filed in this action. [See Docket Nos. 1 (“Petition”) and 23 (“Answer”).] 20 Pursuant to the Court’s Order of October 8, 2020 [Docket No. 12], Petitioner’s 21 Reply to the Answer was due by June 4, 2021, but Petitioner filed a request for an 22 extension of time on that date, which was granted. Although Petitioner’s time to file 23 a Reply was extended to August 3, 2021, he did not do so. On October 28, 2021, 24 United States Magistrate Judge Gail J. Standish issued a Report and 25 Recommendation, in which she recommended that the Petition be denied and this 26 action be dismissed with prejudice. [Docket No. 31.] Objections were due by 27 November 22, 2021. [Docket No. 30.] 28 No Objections to the Report and Recommendation have been filed. Rather, on 1 || November 29, 2021, Petitioner filed a “Motion to Dismiss Petition for Habeas 2 || Corpus.” [Docket No. 32, “Motion.”] In the Motion, Petitioner seeks leave to 3 || “withdraw” the Petition and dismiss this case. 4 Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure provides that a 5 || plaintiff may dismiss an action without a court order before the opposing party 6 || serves either an answer or a motion for summary judgment or if the parties have 7 || stipulated to a dismissal. As Respondent filed an Answer in this case and no 8 || stipulation to dismiss this case is before the Court, Petitioner may voluntarily 9 || dismiss this case only by way of court order “on terms that the court 10 || considers proper.” Fed. R. Civ. P. 41(a)(2); see also Westlands Water District v. 11 || United States, 100 F.3d 94, 96 (9th Cir. 1996) (Rule 41(a)(2) “allows a plaintiff, 12 || pursuant to an order of the court and subject to any terms and conditions the court 13 || deems proper, to dismiss the action without prejudice at any time”). Whether to 14 || allow dismissal under Rule 41(a)(2) is within the Court’s discretion. /d. The 15 || general policy is to allow dismissal unless the opposing party will suffer some form 16 || of legal prejudice as a result. See Hamilton v. Firestone Tire & Rubber Co., 679 17 || F.2d 143, 145 (9th Cir. 1982). The threat of defending against a second lawsuit in 18 || the future does not constitute legal prejudice. /d.; see also Smith v. Lenches, 263 19 || F.3d 972, 976 (9th Cir. 2001). 20 The Court has not reviewed the Petition, the Answer, or the Magistrate Judge’s 21 || Report and Recommendation and, therefore, has not formed any opinion on the 22 || question of whether habeas relief should be granted or denied. There is no apparent 23 || reason in the record to deny Petitioner’s request voluntarily dismiss this action. 24 || Accordingly, IT IS ORDERED that this action is dismissed without prejudice 25 || pursuant to Rule 41(a)(2). Judgment shall be entered accordingly. 26 || DATED: December 7, 2021 age 27 Se 28 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE