Gregory Richardson v. STUART SHERMAN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY RICHARDSON,
Petitioner-Appellant,
v.
STUART SHERMAN, Warden,
Respondent-Appellee.
No. 18-56367
D.C. No. 2:17-cv-07406-VBF-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Gregory Richardson appeals pro se from the district court’s order denying
his motion to voluntarily dismiss his 28 U.S.C. § 2254 habeas petition pursuant to
Federal Rule of Civil Procedure 41(a). We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, see Am. Soccer Co. v. Score First Enters., 187 F.3d
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-56367
1108, 1109-10 (9th Cir. 1999), and we vacate and remand.
Richardson had an absolute right to a dismissal without prejudice because he
filed a notice of voluntary dismissal before the appellee filed an answer or moved
for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A); Am. Soccer Co., 187 F.3d
at 1110. Appellee concedes, and we agree, that the district court erred by denying
Richardson’s motion and by applying the Prisoner Reform Litigation Act, 28
U.S.C. § 1915(g), to Richardson’s habeas corpus petition. See Andrews v. King,
398 F.3d 1113, 1122-23 (9th Cir. 2005) (“[T]he language of § 1915(g) does not
encompass habeas petitions.”). Accordingly, we vacate the judgment dismissing
Richardson’s petition with prejudice and order that the petition be dismissed
without prejudice. See Am. Soccer Co., 187 F.3d at 1112.
VACATED and REMANDED.

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