1:24-cv-01081•Dunn v. State of Arkansas
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1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION LARRY DUNN PETITIONER v. Civil No.1:24-cv-01081-SOH-BAB STATE OF ARKANSAS RESPONDENT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION On November 8, 2024, Larry Dunn filed a petition for habeas corpus under 28 U.S.C. § 2254. ECF No. 1. At that time, Dunn was confined in the Ashley County Detention Center. Id. Before the Court is a Motion to Dismiss Case by Dunn. ECF No. 10. Respondent, the State of Arkansas, has not yet filed a response to the Petition. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. I. BACKROUND On December 4, 2024, the Court granted Dunn’s motion to proceed in forma pauperis. ECF No. 5. The following day, the Court ordered service on the State of Arkansas through the Attorney General, and on Tommy Sturgeon - the Sheriff of Ashley County. ECF No. 6. The order directed the State and the Sheriff to file a Response to the Petition on or before January 25, 2025. ECF No. 6. Because neither the State nor the Sheriff responded, on January 22, 2025, the Court entered an Order to Show Cause as to why they had not responded to the Petition as directed. ECF No. 9. On January 24, 2025, Dunn filed the instant Motion to Dismiss Case in which Dunn makes a “direct request for dismissal: of Habeas Corpus Petition”. ECF No. 10. On January 29, 2025, Case 1:24-cv-01081-SOH Document 15 Filed 01/30/25 Page 1 of 3 PageID #: <pageID>
2 Sheriff Sturgeon filed a Response to the Order to Show Cause which informed the Court that on January 13, 2025, Dunn was released from custody. ECF No. 12, p. 6. On January 30, 2025, the Court confirmed with the office of the Attorney General that the State had no objection to a dismissal of this case. II. LEGAL STANDARD The Federal Rules of Civil Procedure provide for motions seeking voluntary dismissal. Fed. R. Civ. Proc. Rule 41(a)(1)(A)(i) provides that a plaintiff may, without a court order, dismiss an action by filing: “(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”. Unless the notice states otherwise “the dismissal is without prejudice.” Fed. R. Civ. Proc. 41(a)(2). As previously stated, the State of Arkansas has not responded to the Petition. Accordingly, the Court finds Dunn’s request for dismissal should be granted.1 III. CONCLUSION For the reasons stated above, it is recommended Plaintiff’s Motion to Dismiss Case (ECF No. 10) be GRANTED and the claims against the State of Arkansas be DISMISSED WITHOUT PREJUDICE. The parties have fourteen (14) days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. 1 In addition, the State is not required to respond to the Order to Show Cause (ECF No. 9) because adoption of this Report and Recommendation will moot the Order to Show Cause. Case 1:24-cv-01081-SOH Document 15 Filed 01/30/25 Page 2 of 3 PageID #: <pageID>
3 DATED this 30th day of January 2025. s/ Barry A. Bryant_____ HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE Case 1:24-cv-01081-SOH Document 15 Filed 01/30/25 Page 3 of 3 PageID #: <pageID>
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