Tate v. Perry

M.D. Tennessee

Tate v. Perry

DecidedApril 28, 2025

Docket1:25-cv-00008

StatusUnknown

This text of Tate v. Perry (Tate v. Perry) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tate v. Perry, (M.D. Tenn. 2025).

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE COLUMBIA DIVISION

JOHNNY TATE # 444051, ) ) Petitioner, ) ) NO. 1:25-CV-00008 v. ) ) JUDGE CAMPBELL GRADY PERRY, Warden, ) MAGISTRATE JUDGE HOLMES ) Respondent. )

ORDER

Petitioner Johnny Tate, an inmate of the South Central Correctional Facility in Clifton, Tennessee, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). Shortly thereafter, Petition filed a Motion for Voluntary Withdrawal (Doc. No. 9) in which he asks the Court to grant dismissal of this action “pursuant to Rule 41.” (Id. at PageID# 71). A plaintiff may voluntarily dismiss a suit without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). “[A] voluntary dismissal without prejudice leaves the situation as if the action had never been filed.” Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993). Rule 41(a) applies to habeas corpus proceedings. Kelley v. Burton, No. 2:18-CV-11161, at *1 (E.D. Mich. Aug. 21, 2023) (citing Williams v. Clarke, 82 F.3d 270, 272– 73 (8th Cir. 1996); Doster v. Jones, 60 F. Supp. 2d 1258, 1259 (M.D. Ala. 1999) (citing cases)). See also Rule 11, Rules Governing Section 2254 Cases in the United States District Courts (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”). Here, Petitioner filed his Motion for Voluntary Withdrawal before Respondent filed an answer or a motion for summary judgment. Indeed, counsel for the Respondent has not yet filed a Notice of Appearance. Thus, dismissal under Rule 41(a)(1)(A)() is appropriate. The dismissal will be without prejudice. See Kelley, 2023 WL 5835189, at *2 (citing Markham vy. Anderson, 465 F. Supp. 541, 543 (E.D. Mich. 1980)). Accordingly, Petitioner’s Motion for Voluntary Withdrawal (Doc. No. 9) is GRANTED, and the petition is DISMISSED WITHOUT PREJUDICE. Petitioner’s other pending motions (Doc. Nos. 2, 3, 4, 7) ace DENIED AS MOOT. It is so ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE COLUMBIA DIVISION

JOHNNY TATE # 444051, ) ) Petitioner, ) ) NO. 1:25-CV-00008 v. ) ) JUDGE CAMPBELL GRADY PERRY, Warden, ) MAGISTRATE JUDGE HOLMES ) Respondent. )

ORDER

Petitioner Johnny Tate, an inmate of the South Central Correctional Facility in Clifton, Tennessee, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). Shortly thereafter, Petition filed a Motion for Voluntary Withdrawal (Doc. No. 9) in which he asks the Court to grant dismissal of this action “pursuant to Rule 41.” (Id. at PageID# 71). A plaintiff may voluntarily dismiss a suit without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). “[A] voluntary dismissal without prejudice leaves the situation as if the action had never been filed.” Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993). Rule 41(a) applies to habeas corpus proceedings. Kelley v. Burton, No. 2:18-CV-11161, at *1 (E.D. Mich. Aug. 21, 2023) (citing Williams v. Clarke, 82 F.3d 270, 272– 73 (8th Cir. 1996); Doster v. Jones, 60 F. Supp. 2d 1258, 1259 (M.D. Ala. 1999) (citing cases)). See also Rule 11, Rules Governing Section 2254 Cases in the United States District Courts (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”). Here, Petitioner filed his Motion for Voluntary Withdrawal before Respondent filed an answer or a motion for summary judgment. Indeed, counsel for the Respondent has not yet filed a Notice of Appearance. Thus, dismissal under Rule 41(a)(1)(A)() is appropriate. The dismissal will be without prejudice. See Kelley, 2023 WL 5835189, at *2 (citing Markham vy. Anderson, 465 F. Supp. 541, 543 (E.D. Mich. 1980)). Accordingly, Petitioner’s Motion for Voluntary Withdrawal (Doc. No. 9) is GRANTED, and the petition is DISMISSED WITHOUT PREJUDICE. Petitioner’s other pending motions (Doc. Nos. 2, 3, 4, 7) ace DENIED AS MOOT. It is so ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

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