Farrakhan-Muhammad v. Berkebile

Filing 5

ORDER DISMISSING CASE by Judge Lewis T. Babcock on 5/30/13. Leave to proceed in forma paupers on appeal is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01168-BNB
Q ILI-YAAS HAAKEEM FARRAKHAN-MUHAMMAD,1
Plaintiff,
v.
BLAKE R. DAVIS, Warden,
Defendant.

ORDER DISMISSING CASE

Plaintiff is in the custody of the United States Bureau of Prisons and currently is
incarcerated at ADX in Florence, Colorado. Acting pro se, Plaintiff initiated this action
by filing an Application for a Writ of Mandamus Pursuant to 28 U.S.C. 1361. Magistrate
Judge Boyd N. Boland entered an order on May 6, 2013, directing Plaintiff to cure
certain deficiencies. On May 28, 2013, Plaintiff filed a Notice of Voluntary Dismissal.
The Court must construe the Notice liberally because Plaintiff 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).
Rule 41(a)(1)(A) 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 . . . .” Defendant has not filed an answer in

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The Court notes that Mr. Q Ili-Yaas Haakeem Farrakhan-Muhammad, Inmate Register
# 02791-088 is the same person as Christopher Mitchell, C. Eli-Jah Hakeem Muhammad, Elijah
Hakeem Muhammad, and Caliph Ili-Yas Az-Hakeem Muhammad. The Court further notes that
Plaintiff is subject to 28 U.S.C. 1915(g) filing restrictions.

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 8-41James Wm. Moore et al., Moore’s Federal Practice §
41.33(6)(a) (3d ed. 1997); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th
Cir. 1968).
The Court, therefore, construes the pleading as a Notice of Dismissal filed
pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of May 28, 2013, 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 will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Notice of Voluntary Dismissal, ECF No. 4, is effective as of
May 28, 2013, the date Plaintiff filed the Notice in this action. It is
FURTHER ORDERED that leave to proceed in forma paupers on appeal is
denied.
DATED at Denver, Colorado, this 30th

day of

May

, 2013.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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