Williams v. Federal Bureau of Prisons

Filing 11

ORDER Dismissing Case. The voluntary dismissal is without prejudice and iseffective as of April 29, 2014, the date Plaintiff filed the "Request Permission to Voluntary Dismissal Civil Action No. 14-cv-00860-BNB under Fed. R. Civ. P.41(a)(1)(A)." By Judge Lewis T. Babcock on 5/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00860-BNB
WESLEY BERNARD WILLIAMS,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER DISMISSING CASE

Plaintiff, Wesley Bernard Williams, is in the custody of the Federal Bureau of
Prisons and is incarcerated at the United States Penitentiary in Florence, Colorado. He
initiated this action by filing a Prisoner Complaint asserting claims under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, based on allegations that
Dr. Allred denied him adequate medical care for a chronic scalp condition.
On April 2, 2014, Magistrate Judge Boyd N. Boland reviewed the Prisoner
Complaint and determined that it was deficient because the doctrine of sovereign
immunity precluded Plaintiff’s suit against the Bureau of Prisons. Magistrate Judge
Boland further observed that Mr. Williams had already initiated a Bivens action in this
Court against Dr. Allred, asserting Eighth Amendment claims based on the same facts
as those alleged in the instant action. See Case No. 13-cv-03420-RBJ-BNB. Magistrate
Judge Boland informed Mr. Williams in the April 2 Order that an FTCA action against
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the United States and a Bivens action against a federal official are alternate remedies,
and that a judgment against the United States under the FTCA constitutes a complete
bar to any action by the claimant, by reason of the same subject matter, against the
employee . . . whose act or omission gave rise to the claim. See 28 U.S.C. §§ 2674,
2676, 2679. Magistrate Judge Boland then directed Plaintiff to file an Amended
Complaint asserting an FTCA claim against the United States within thirty (30) days if
he intended to pursue relief under that statute.
On April 29, 2014, Mr. Williams filed a “Request Permission to Voluntary
Dismissal Civil Action No. 14-cv-00860-BNB under Fed. R. Civ. P. 41(a)(1)(A)” (ECF
No. 10).
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 April 29, 2014. See Hyde
Constr. Co., 388 F.2d at 507.
Mr. Williams is reminded that an action under the FTCA must be filed within six
months after the claimant receives notice of the agency’s final denial of an
administrative claim. 28 U.S.C. § 2401(b). Accordingly, it is
ORDERED that the action is dismissed pursuant to Fed. R. Civ. P. 41(a)(1). It is
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FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of April 29, 2014, the date Plaintiff filed the “Request Permission to
Voluntary Dismissal Civil Action No. 14-cv-00860-BNB under Fed. R. Civ. P.
41(a)(1)(A).”
DATED at Denver, Colorado, this 1st day of

May

, 2014.

BY THE COURT:

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

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