IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 17, 2010
MARK A. SMITH, PLAINTIFF,
DEPARTMENT OF MENTAL HEALTH, DEFENDANT.
Plaintiff is in the indefinite custody of the California Department of Mental Health pursuant to a 2009 Superior Court judgment finding that he continues to be a sexually violent predator whose release would pose a danger to the community. Proceeding pro se, he originally filed a complaint and two amended complaints under 42 U.S.C. § 1983. On October 19, 2010, the court dismissed the second amended complaint. The court also appointed the Federal Defender to represent plaintiff on a limited basis. Counsel and plaintiff were allowed sixty days in which to file a petition for writ of habeas corpus, or, if they determined that plaintiff has no cognizable claims under the habeas statute, to file a voluntary notice of dismissal under Federal Rule of Civil Procedure 41(b). They were also given leave to inform the court if plaintiff could and would try to proceed with a complaint under the Civil Rights Act. See Order (Docket No. 16).
Acting through counsel, plaintiff has now moved for voluntary dismissal under Rule 41(b). He states that his appeal from the 2009 judgment remains pending at the intermediate appellate level and he understands that the state appeal process must be complete before he can pursue habeas relief in federal court. See Motion at 1-2. He requests that dismissal of this matter be without prejudice to filing a federal habeas petition after he has fully exhausted his state remedies. The court will recommend that request be granted.
IT IS THEREFORE ORDERED that the motion for voluntary dismissal (Docket No. 18) is granted and this case dismissed without prejudice to the filing of a federal habeas petition after all state remedies have been exhausted.
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