Rainey v. DOC

Filing 12

ORDER Dismissing Case. ORDERED that the action is dismissed. FURTHER ORDERED that the voluntary dismissal is without prejudice and is effective as of 11/1/11, the date Plaintiff filed the Notice in this action. FURTHER ORDERED that all pending motions 1 5 are denied as moot, by Judge Lewis T. Babcock on 11/7/11.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02518-BNB
JOHN RAINEY,
Plaintiff,
v.
DOC,
Defendant.

ORDER DISMISSING CASE

Plaintiff, John Rainey, is a prisoner in the custody of the Colorado Department of
Corrections (DOC) who is currently incarcerated at the Centennial Correctional Facility
in Canon City, Colorado. Mr. Rainey initiated this action by filing a pro se Prisoner
Complaint and a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 on October 17, 2011. He has been granted leave to proceed pursuant to 28

U.S.C. § 1915.
On November 1, 2011, Mr. Rainey filed a letter to the Court asking that this
action be dismissed without prejudice. In the letter, Mr. Rainey states that he seeks a
voluntary dismissal because he has not yet completed the grievance process. The
Court will construe the letter as a Notice of Dismissal filed pursuant to Rule 41(a)(1) of
the Federal Rules of Civil Procedure.
Fed. R. Civ. P. 41(a)(1) provides that “the plaintiff may dismiss an action without
a court order by filing: (i) a notice of dismissal before the opposing party serves either

an answer or a motion for summary judgment . . . .” No answer or motion for summary
judgment has been filed by Defendant in this action. Further, a voluntary dismissal
under Rule 41(a)(1) is effective immediately upon the filing of a written notice of
dismissal, and no subsequent court order is necessary. See J. Moore, Moore's Federal
Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501,
507 (10th Cir. 1968). The Notice, therefore, closes the file as of November 1, 2011.
See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the action is dismissed pursuant to Fed. R. Civ. P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of November 1, 2011, the date Plaintiff filed the Notice in this action. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 7th day of

November

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court