Martinez v. No Named Respondent

Filing 5

ORDER dismissing this action without prejudice as of 3/12/14 by Judge Lewis T. Babcock on 3/17/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00393-BNB
GERARDO MARTINEZ,
Applicant,
v.
NO NAMED RESPONDENT,
Respondent.

ORDER DISMISSING CASE

Applicant, Gerardo Martinez, initiated this action by filing pro se a Letter
regarding a federal probation hold in Denver, Colorado, ECF No. 1. On February 13,
2014, Magistrate Judge Boyd N. Boland entered an order directing Applicant to cure
certain deficiencies by filing his claims on a Court-approved form used in filing 28
U.S.C. § 2241 actions and either paying the $5 filing fee or in the alternative submitting
a request to proceed pursuant to 28 U.S.C. § 1915. On March 12, 2014, Applicant filed
a Notice and Motion for Voluntary Dismissal of Action Without Prejudice, ECF No. 4.
The Court must construe the Motion liberally because Applicant 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 [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 Respondents 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 Voluntary Dismissal
filed pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of March 12, 2014, the
date the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
Accordingly, it is
ORDERED that the Notice and Motion for Voluntary Dismissal, ECF No. 4, is
construed as a Notice of Voluntary Dismissal filed pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i) and is effective as of March 12, 2014, the date Applicant filed the Notice in
this action. It is
FURTHER ORDERED that the action is dismissed without prejudice.
DATED at Denver, Colorado, this 17th day of

March

, 2014.

BY THE COURT:

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

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