RICHARDSON v. SHERMAN (2019)

MEMORANDUM **

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 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.