Kahn v. Daniels

Filing 15

ORDER Dismissing Case. ORDERED that the Motion to Dismiss Case 12 is construed as a Notice of Dismissal and is effective as of 9/7/12. FURTHER ORDERED that Respondent's Motion to Dismiss as Moot Pursuant to Fed. R. Civ. P. 12(b)(1) 11 is denied as moot. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 9/12/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01970-BNB
ROY ALBERT KAHN,
Applicant,
v.
CHARLES DANIELS,
Respondent.

ORDER DISMISSING CASE

Applicant, Roy Albert Kahn, acting pro se, initiated this action by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. On July 30,
2012, Magistrate Judge Boyd N. Boland entered an order directing Respondent to file a
Preliminary Response and address the affirmative defense of exhaustion of
administrative remedies if Respondent intended to raise this defense. Respondent filed
a Response on August 16, 2012, and argued the action should be dismissed because
Mr. Kahn had failed to exhaust his administrative remedies. Subsequently, on
September 7, 2012, Respondent filed a Motion to Dismiss and Mr. Kahn filed a Motion
to Dismiss Case. Respondent and Mr. Kahn agree that because he was released from
prison on August 31, 2012, the action is moot.
The Court must construe the Motion liberally because Mr. Kahn is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). In the Motion, Mr. Kahn requests that the Court dismiss

this action because he no longer is incarcerated and the relief he requests does not
affect his supervised release.
Rule 41(a)(1)(A) provides that “the [applicant] 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 on the merits or motion for
summary judgment has been filed by Respondent in this action. Further, a voluntary
dismissal under Rule 41(a)(1)(A)(i) 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 Court, therefore, construes the Motion as a Notice of Dismissal filed
pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of September 7, 2012, the
date the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order is not taken in good faith, and, therefore, in forma pauperis status is
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Kahn files a notice of appeal he must also pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Motion to Dismiss Case, ECF No. 12, is construed as a
Notice of Dismissal filed pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) and is effective as of
September 7, 2012, the date Mr. Kahn filed the Notice in this action. It is

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FURTHER ORDERED that Respondent’s Motion to Dismiss as Moot Pursuant to
Fed. R. Civ. P. 12(b)(1), ECF No. 11, is denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

12th

day of

September

, 2012.

BY THE COURT:

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

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