1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 LORENZO MARTIN, Case No. 2:18-cv-07173-AB (GJS)

12 Petitioner ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 SHAWN HATTON, Acting Warden JUDGE of Salinas Valley State Prison, 15 Respondent. 16

17 Pursuant to

, the Court has reviewed the Petition, all 18 pleadings and other documents filed in this action, and the Report and 19 Recommendation of United States Magistrate Judge [Dkt. 18, “Report”]. The time 20 for filing Objections to the Report has passed, and no Objections have been received 21 by the Court. 22 Rather than file Objections to the Report, in response, Petitioner has filed a 23 letter asking that the case be dismissed without prejudice [Dkt. 19, “Request”]. 24 Petitioner asks that this case be dismissed without prejudice so that he can “refile” 25 the Petition. 26 Voluntary dismissal of this action, pursuant to Rule 41(a) of the Federal Rules 27 of Civil Procedure, is not appropriate given that Respondent has answered the 28 Petition. Under Rule 41(a)(2), Petitioner may dismiss this action without prejudice 1 || only if the Court orders such dismissal. Whether to allow such a dismissal 1s within 2 || this Court’s discretion. Wetlands Water District v. United States,

, 96 3 || (9th Cir. 1996). In its discretion, the Court declines to allow this action to be 4 || dismissed without prejudice. Petitioner did not seek dismissal until after 5 || Respondent had expended time and effort in responding to the Petition and the 6 || Magistrate Judge had expended substantial time and effort analyzing Petitioner’s 7 || claims and concluded that they do not warrant relief. It is inappropriate for 8 || Petitioner to wait until he knows how the Court is likely to rule and then seek what 9 || amounts to an attempted do-over, apparently hoping he might get a more favorable 10 || result when he re-files the Petition. Moreover, any re-filed Petition will be untimely 11 || (absent tolling of some sort). 12 Petitioner’s claims were timely when filed in this action and have been 13 || briefed, analyzed, and resolved against him. There is no legitimate reason to allow 14 || him to dismiss this case at this belated juncture and start over by re-filing an 15 || untimely Petition, thereby subjecting both Respondent and the Court to duplicative 16 || efforts on a case that has been resolved. Accordingly, the Request is DENIED.' 17 Having completed its review, the Court accepts the findings and 18 || recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) 19 |) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action 20 || with prejudice. 21 LET JUDGMENT BE ENTERED ACCORDINGLY. (dé 23 || DATE: October 28, 2019 ANDRE BIROTTE, JR. UNITED STATES DISTRICT JUDGE 25 26 |}; ——— 28 I The Court notes that, in violation of Fed. R. Civ. P. 5, Petitioner failed to serve the Request upon Respondent.