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White v. Dickinson

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


August 14, 2010

DAVID LEE WHITE, PETITIONER,
v.
K. DICKINSON, RESPONDENTS.

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss, arguing that the petition is successive and untimely. See Docket No. 12. Petitioner has responded with, first, a motion to amend the petition and, second, a motion to withdraw the petition. See Docket Nos. 14 and 18.

Although the motion to withdraw is, by its terms, directed at the original (and still effective) petition, on June 10, 2010, the court ordered petitioner to clarify whether he means to withdraw the original petition and thus dismiss this case pursuant to Federal Rule of Civil Procedure 41 or whether he only means to withdraw his motion to amend the petition. See Docket No. 19. The court gave petitioner fourteen days in which to respond to the order. The docket notes show the order was served on petitioner at the address he provided the court, but the court has received no response or communication of any kind from petitioner since issuing the order.

Because the motion to amend the petition has not been ruled upon, there is no amended petition operative in this case.*fn1 See 28 U.S.C. § 1915A (requiring the court to screen all actions brought by prisoners seeking redress against a governmental entity). The court apprised petitioner of the consequences of granting the motion as to the original petition but received no clarification, objection or other response. The court concludes, therefore, that the motion to withdraw the petition should be granted and recommends that this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2).

Accordingly, IT IS RECOMMENDED that:

1. The motion to withdraw the petition for writ of habeas corpus (Docket No. 18) be granted.

2. Petitioner's motion to amend (Docket No. 14) be denied as moot.

3. This case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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