Ausborne v. Days Inn Company, The et al

Filing 8

ORDER dismissing this action without prejudice, as of 12/16/14, by Judge Lewis T. Babcock on 12/19/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03120-GPG
MARCUS J. AUSBORNE,
Plaintiff,
v.
THE DAYS INN COMPANY,
MRS. PARTISA, Wife,
MR. MARTINEZ PARTISA, Husband,
DEPUTY OFFICER LOWRY,
DISTRICT ATTORNEY OFFICER PAUL SANFORD,
JUDGE GILBERT, and
SHERIFF DEPARTMENT
Defendants.

ORDER DISMISSING CASE

Plaintiff, Marcus J. Ausborne, initiated this action by filing pro se a Prisoner
Complaint (ECF No. 1). On November 25, 2014, Magistrate Judge Gordon P.
Gallagher reviewed the Complaint, found that it was deficient, and entered an order
directing Plaintiff to file an amended complaint if he wished to pursue his claims in this
action.
On December 16, 2014, Plaintiff submitted a Letter (ECF No. 7) to the Court
asking that the Court dismiss his case without prejudice. The Court will construe the
Letter as follows.
The Court must construe the Letter liberally because Plaintiff 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 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 on the
merits or motion for summary judgment has been filed by Defendants 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 Letter as a Notice of Voluntary Dismissal filed
pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of December 16, 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 Letter, ECF No. 7, 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 December
16, 2014, the date Plaintiff filed the Notice in this action. It is
FURTHER ORDERED that the action is dismissed without prejudice.
DATED at Denver, Colorado, this 19th

day of

December

, 2014.

BY THE COURT:

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

2