Kessler v. Hoak et al
ORDER DISMISSING CASE by Judge Lewis T. Babcock on 2/18/15: 11 Motion to Withdraw Complaint is granted and the instant action is dismissed. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03320-GPG
MARY HOAK, #21884,
ASHLEY SHELTON, #44841, and
ORDER DISMISSING CASE
Plaintiff, Daniel Kessler, is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Kessler initiated this action by filing pro se a Complaint (ECF No. 1)
and a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No.
2). On December 8, 2014, Magistrate Judge Gordon P. Gallagher entered an order
directing Mr. Kessler to cure certain deficiencies if he wished to pursue his claims in this
action. Mr. Kessler subsequently cured one of the deficiencies and was granted an
extension of time to cure the remaining deficiencies.
Mr. Kessler has not cured the remaining deficiencies in this action. Instead, on
February 17, 2015, he filed a Motion to Withdraw Complaint (ECF No. 11) stating he
has not exhausted state remedies and intends to seek legal assistance. The Court
construes the Motion to Withdraw Complaint as a notice of voluntary dismissal.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Kessler
“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
response has been filed by any opposing party in this action. A voluntary dismissal
pursuant to Rule 41(a)(1)(A) 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 notice closes the file. See Hyde Constr. Co., 388 F.2d at 507.
Accordingly, it is
ORDERED that the Motion to Withdraw Complaint (ECF No. 11) is granted and
the instant action is dismissed. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 18th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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