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Holloway v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 29, 2009

WILLIE HOLLOWAY, PETITIONER,
v.
D. K. SISTO, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges the Board of Prison Terms' 2003 finding that he was unsuitable for parole. Respondents filed an answer to the petition on August 7, 2009. However, on August 20, 2009, respondents notified the court that the Board recently found petitioner suitable for parole and that petitioner was released on August 15, 2009. Accordingly, an individual, Willie Reese, has filed a notice that purports to express petitioner's desire to voluntarily dismiss this action. A petitioner may not voluntarily dismiss an action after answer has been filed. Fed. R. Civ. P. 41(b); see also Rule 11, Rules Governing Section 2254 Proceedings. Moreover, in light of petitioner's release, this action may well be moot. However, the petitioner must file his request himself. A party appearing without counsel must file all papers on his own behalf and may not delegate this task to any other individual. L. R. 83-183(a). Nowhere does Willie Reese indicate that he is a licensed attorney authorized to practice in this Court. Thus, it appears that petitioner has delegated the obligation to file papers in this action to a person who is not an attorney authorized to practice in this Court. The request to voluntarily to dismiss this action therefore must be denied without prejudice.

Accordingly, it hereby is ORDERED that the August 20, 2009, request to voluntarily dismiss this action is denied and petitioner is instructed to inform the court directly whether he requests voluntary dismissal. Plaintiff shall file a notice within 14 days of this order clarifying whether he seeks dismissal of his petition.

20090929

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