Carbajal v. Serra et al

Filing 125

ORDER granting 119 Plaintiff's Motion to Dismiss/ Withdraw Civil Complaint. The case shall be dismissed against all defendants without prejudice. Denying as moot all pending motions and magistrate judge recommendations: 68 Motion to Dismis s, 69 Motion to Dismiss Party, 95 Motion for Permanent Injunction, 98 Motion for Permanent Injunction, 110 Report and Recommendation, 114 Report and Recommendation, 117 Motion for Hearing/Conference, 18 Motion for Order, 23 Motion to Dismiss, 26 Motion to Dismiss, 27 Motion to Dismiss Party, and 30 Motion to Dismiss, by Judge Philip A. Brimmer on 3/18/09.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer

Civil Action No. 08-cv-01131-PAB-BNB DEAN CARBAJAL, Plaintiff, v. MYRL SERRA, District Attorney for Montrose County, in her individual and official capacity, MONTROSE COUNTY, a state municipal entity, BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF MONTROSE, CITY AND COUNTY OF MONTROSE, a state municipal entity, MONTROSE COUNTY PROBATION DEPARTMENT, a municipal entity, CITY AND COUNTY OF DELTA, a state municipal entity, DELTA COUNTY PROBATION DEPARTMENT, a municipal entity, BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF DELTA COUNTY, CITY AND COUNTY OF DELTA, BRIAN DOMMGUES, District Attorney for Jefferson County, in his individual and official capacity, BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF JEFFERSON COUNTY, JEFFERSON COUNTY, a state municipal entity, and STATE OF COLORADO, a state in the United States of America, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter comes before the Court on plaintiff Dean Carbajal's "Motion to Dismiss / Withdraw Civil Complaint" [Docket No. 119] ("Pl.'s Mot. to Dismiss"). On March 9, 2009, plaintiff filed this motion to voluntarily "dismiss and withdraw the civil action that he has initiated." See Pl.'s Mot. to Dismiss at 2. On March 10, 2009, the Court ordered the defendants to file responses to plaintiff's motion for voluntary dismissal on or before March 17, 2009 [Docket No. 120]. As of March 18, 2009, no

defendant has indicated any opposition to the motion or the dismissal of the case without prejudice.1 Plaintiff bases his motion on questionable Constitutional grounds. See Pl.'s Mot. to Dismiss at 2. However, because plaintiff appears pro se, I liberally construe the motion as one for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i). To date, no defendant has filed an answer or motion for summary judgment in this case. Therefore, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A), it is appropriate to dismiss this case without prejudice. See also Fed. R. Civ. P. 41(a)(1)(B); Lorillard Tobacco Co. v. Engida, 556 F. Supp. 2d 1209, 1212-13 (D. Colo. 2008). It is therefore ORDERED that plaintiff's Motion to Dismiss / Withdraw Civil Complaint [Docket No. 119] is GRANTED. The case shall be dismissed against all defendants without prejudice.2 It is further

Responses were filed by defendants City and County of Delta (actually County of Delta) [Docket No. 121]; Myrl Serra, Delta County Probation Department, and the State of Colorado [Docket No. 122]; and Montrose County [Docket No. 123]. There is some confusion regarding what defendants are properly parties to this case. Apparently in response to plaintiff's second amended complaint [Docket No. 76], various defendants have been terminated or added in the Court's electronic case management system. Although the second amended complaint has not been accepted by the Court, and Magistrate Judge Boyd N. Boland recommended that it be refused [Docket No. 114], this issue is rendered moot by plaintiff's motion to voluntarily dismiss his case. Therefore, this case is dismissed as to all potential defendants listed in this Order's caption. 2
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ORDERED that all pending motions and magistrate judge recommendations [Docket Nos. 18, 23, 26, 27, 30, 68, 69, 95, 98, 110, 114, 117] are DENIED as moot.

DATED March 18, 2009. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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