Terrell-Bey v. Colon et al

Filing 9

ORDER Dismissing Case. The action is dismissed pursuant to Fed. R. Civ. P. 41(a)(1). The voluntary dismissal is without prejudice and is effective as of May 2, 2014. By Judge Lewis T. Babcock on 5/7/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01042-BNB
BROOKS TERRELL-BEY,
Plaintiff,
v.
JUAN COLON,
G. HALL,
RICHARD SCHOTT,
U.S. DEPARTMENT OF JUSTICE, and
FED. B. PRISON,
Defendants.

ORDER DISMISSING CASE

Plaintiff, Brooks Terrell-Bey, is in the custody of the Federal Bureau of Prisons at
ADX-Florence, Colorado. He initiated this action by filing, pro se, a Prisoner Complaint
alleging deprivations of his constitutional rights pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). Mr. Terrell-Bey has been granted leave to proceed without prepayment of the
filing fee pursuant to 28 U.S.C. § 1915.
On April 25, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint
and determined that it was deficient for the following reasons: (1) the Bivens claims
against Defendants Federal Bureau of Prisons and the United States Department of
Justice are barred by the doctrine of sovereign immunity, see Federal Deposit
Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding that a Bivens action
may not be brought against the United States); (2) Plaintiff failed to allege the personal

participation of each named Defendant in a violation of his constitutional rights, see Kite
v. Kelly, 546 F.2d 334, 338 (1976); and, (3) Plaintiff’s allegations of medical negligence
do not implicate the Constitution. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Accordingly, Magistrate Judge Boland directed Plaintiff to file an amended complaint
within thirty days of the April 25 Order.
On May 2, 2014, Mr. Terrell-Bey filed a “Motion for Voluntary Dismissal” (ECF
No. 8) stating that he wished to dismiss this action voluntarily.
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 May 2, 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 May 2, 2014.
DATED at Denver, Colorado, this 7th

day of

May

, 2014.

BY THE COURT:

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