Lee v. Cozza-Rhodes et al
ORDER dismissing this action without prejudice as of 1/16/14 by Judge Lewis T. Babcock on 1/23/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03505-BNB
BRANDON CHE LEE,
and Does 1-100 inclusive,
ORDER DISMISSING CASE
Plaintiff, Brandon Che Lee, is in the custody of the Federal Bureau of Prisons at
the United States Penitentiary in Florence, Colorado. He initiated this action on
December 24, 2013, by submitting pro se a document in which he asserts that he has
been “maltreated” by prison officials. (ECF No. 1). Mr. Lee filed an identical document
on December 26, 2013. (ECF No. 3).
On December 30, 2013, Magistrate Judge Boyd N. Boland reviewed Plaintiff’s
filings and determined that they were deficient. Magistrate Judge Boland directed Mr.
Lee to submit a Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved forms, within thirty days of
the December 30 Order. Alternatively, in lieu of submitting a § 1915 motion and
affidavit, Plaintiff was directed to pay the $400.00 filing fee.
On January 2, 2014, Mr. Lee submitted a deficient Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915. (ECF No. 5). In a January 7, 2014
Minute Order the Court directed Plaintiff to resubmit his § 1915 motion and affidavit on
the court-approved form, along with a Prisoner Complaint. (ECF No. 6).
Mr. Lee filed
two Letters with the Court on January 16 and 17, 2014, in which he states that he does
“not want to process” this case. (ECF Nos. 8 and 9).
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 Defendants 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 motion, therefore, closes the file as of January 16, 2014. 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 January 16, 2014, the date Mr. Lee filed the first Letter stating that he did
not want to process this case.
DATED at Denver, Colorado, this 23rd day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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