Greene v. Harpstead

DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE

ORDER ADOPTING REPORT AND RECOMMENDATION

DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE

The above matter comes before the Court upon the Report and Recommendation (“R&R”) of Magistrate Judge Dulce J. Foster dated October 5, 2022. (Doc. No. 13.) The R&R recommends that Petitioner Guy Greene's motion to amend and “motion to not dismiss the action for failure to prosecute” be granted. Additionally, the R&R recommends that Greene's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied and that this action be dismissed without prejudice. Finally, the R&R recommends that the Court deny Greene's motion to appoint counsel. Greene now files a motion to dismiss the action without prejudice. (Doc. No. 14.) Greene does not appear to object to the R&R. Rather, Greene's request for dismissal without prejudice is entirely consistent with the R&R's recommendation.

The factual background for the above-entitled matter is clearly and precisely set forth in the R&R and is incorporated by reference. Based upon the R&R and upon all of 1 the files, records, and proceedings herein, the Court hereby adopts the R&R of Magistrate Judge Foster and denies Greene's motion to dismiss as moot.

ORDER

Based upon the record before the Court, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that:

1. Magistrate Judge Dulce Foster's Report and Recommendation (Doc. No. [13]) is ADOPTED.

2. Petitioner Greene's motion to amend (Doc. No. [5]) is GRANTED and the amended petition for writ of habeas corpus (Doc. No. [5-1]) is the operative pleading in the matter.

3. Greene's amended petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. No. [5-1]) is DENIED WITHOUT PREJUDICE.

4. Greene's motion to not dismiss for failure to prosecute (Doc. No. [9]) is GRANTED.

5. Greene's motion to appoint of counsel (Doc. No. [10]) is DENIED.

6. Greene's motion to voluntarily dismiss the action pursuant to Federal Rule of Civil Procedure 41(a) without prejudice (Doc. No. [14]) is DENIED AS MOOT.

7. This matter is DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY. 2