Bingham v. No Named Respondent

Filing 5

ORDER DISMISSING CASE that the voluntary dismissal is effective as of February 11, the date the notice of voluntary dismissal was filed in this action, by Judge Lewis T. Babcock on 2/19/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00316-BNB
MICHAEL WAYNE BINGHAM,
Applicant,
v.
[NO NAMED RESPONDENT],
Respondent.

ORDER DISMISSING CASE

Plaintiff, Michael Wayne Bingham, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Colorado State
Penitentiary in Cañon City, Colorado. On February 3, 2014, Mr. Bingham filed pro se a
document titled “Affidavit of Truth” with an attachment (ECF No. 1).
On February 5, 2014, Magistrate Judge Boyd N. Boland ordered Mr. Bingham to
cure certain deficiencies within thirty days. Instead of complying with the February 5
order, Mr. Bingham, on February 11, 2014, filed a letter to Magistrate Judge Boyd N.
Boland informing him that the “Affidavit of Truth” and attachment accidentally were
submitted to this Court, he did not intend to initiate an action in this Court, and the
documents should have been submitted in a pending case before the Colorado Court of
Appeals. He asks that the original documents be returned to him so that he may file
them in the state appeals court by the required deadline.
The Court must construe liberally Mr. Bingham’s letter because he is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the letter will be treated as a notice of voluntary dismissal.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr.
Bingham “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 response has been filed by the unnamed Respondent in this action. Pursuant to
Fed. R. Civ. P. 41(a)(1)(B), the dismissal is without prejudice, unless otherwise stated.
A voluntary dismissal pursuant to Rule 41(a)(1)(A) 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 closes the file. See Hyde
Constr. Co., 388 F.2d at 507.
Mr. Bingham’s request that his original documents be returned to him will be
granted only because the Court still possesses the recently submitted originals.
Normally, a litigant may obtain copies of the electronic documents filed in this action at a
cost of $.50 per page paid in advance. Mr. Bingham is advised to keep his own copies
of any documents that he files with the Court in the future because the Court’s
electronic filing system does not allow the Court to maintain paper copies. The clerk of
the Court will be directed to mail to Mr. Bingham, together with a copy of this order, the
original documents docketed in this action as ECF No. 1.

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Accordingly, it is
ORDERED that the instant action is dismissed without prejudice pursuant to the
notice of voluntary dismissal with prejudice (ECF No. 4) that Applicant, Michael Wayne
Bingham, filed pro se on February 11, 2014. It is
FURTHER ORDERED that the voluntary dismissal is effective as of February 11,
the date the notice of voluntary dismissal was filed in this action. It is
FURTHER ORDERED that Applicant’s request for the return of his original
documents is granted this time only. It is
FURTHER ORDERED that the clerk of the Court mail to Mr. Bingham, together
with a copy of this order, the original documents docketed in this action as ECF No. 1.
DATED at Denver, Colorado, this

19th

day of

February

, 2014.

BY THE COURT:

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

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