Lee v. Cozza-Rhodes et al

Filing 10

ORDER dismissing this action without prejudice as of 1/16/14 by Judge Lewis T. Babcock on 1/23/14. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv-03505-BNB BRANDON CHE LEE, Plaintiff, v. COZZA-RHODES, PRICE, NAGER, HORSFMAN, WILCOX, THOMPSON, and and Does 1-100 inclusive, Defendants. 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 January , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 2

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