Dunn v. State of Arkansas

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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,
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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.
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DATED this 30th day of January 2025.
s/ Barry A. Bryant_____
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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