Montes v. United States of America (INMATE 3)

Filing 5

ORDER construing petitioner's 4 motion to withdraw 2255 as a notice of voluntary dismissal pursuant to Rule 41 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, as further set out in order; therefore, petitioner's voluntary dismissal is without prejudice; This action has thus been dismissed by operation of Rule 41(a)(1). Accordingly, the Clerk of the Court is DIRECTED to close this case. Signed by Chief Judge William Keith Watkins on 11/16/17. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSE L. MONTES,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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CASE NO. 1:17-CV-699-WKW
[WO]

ORDER
Before the court is Petitioner’s Motion to Withdraw 2255 (Doc. # 4). The
court construes Petitioner’s motion as a notice of voluntary dismissal pursuant to
Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, which the court applies
to this 28 U.S.C. § 2255 proceeding pursuant to Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts. Because Respondent
has yet to file “either an answer or a motion for summary judgment,” Petitioner “may
dismiss [this] action without a court order.” Fed. R. Civ. P. 41(a)(1)(A)(i). Although
Petitioner currently believes that “it seems pointless to even try” to pursue the claim
he makes in this action (Doc. # 4, at 1), he has not clearly indicated any desire for
the dismissal he requests to be with prejudice. Therefore, Petitioner’s voluntary
dismissal is without prejudice. Fed. R. Civ. P. 41(a)(1)(B).

This action has thus been dismissed by operation of Rule 41(a)(1).
Accordingly, the Clerk of the Court is DIRECTED to close this case.
DONE this 16th day of November, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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