Pardue v. USA

Filing 6

ORDER DISMISSING CASE without prejudice by Judge Lewis T. Babcock on 12/3/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02999-GPG
MORRIS PARDUE,
Petitioner,
v.
[NO RESPONDENT NAMED],
Respondent.

ORDER DISMISSING CASE

Plaintiff, Morris Pardue, is in the custody of the Federal Bureau of Prisons at the
Federal Correctional Institution in Florence, Colorado. He initiated this action by filing a
Motion for Judicial Recommendation Pursuant to the Second Chance Act of 2007 (ECF
No. 1-1) in the Western District of Texas. The Western District of Texas construed the
motion as a request for relief pursuant to 28 U.S.C. § 2241, and transferred the case to
the District of Colorado, where Mr. Pardue is incarcerated. (ECF Nos. 1, 1-2). Because
Petitioner is challenging the execution of his federal sentence, an action has been
commenced under 28 U.S.C. § 2241.
On November 6, 2014, Magistrate Judge Boyd N. Boland reviewed Mr. Pardue’s
pleading and determined that it was deficient. Magistrate Judge Boland directed
Petitioner to file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 on the court-approved form, within 30 days of the November 6 Order. (ECF No.
3). Mr. Pardue was also directed to file a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action, or pay the $5.00 filing fee,

within 30 days. (Id.).
On December 1, 2014, Mr. Pardue filed a Notice (ECF No. 5) in which he states
that he “does not challenge the execution of his federal sentence . . . and does not
intend to pursue a habeas corpus action in this court.” (Id.). Petitioner requests that the
Court dismiss this action without prejudice. (Id.).
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 other responsive
pleading has been filed 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 December 1, 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 December 3, 2014.
DATED December 3, 2014, at Denver, Colorado.
BY THE COURT:

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

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