Howard v. Raemisch et al

Filing 8

ORDER dismissing this action, without prejudice, as of 1/22/15 by Judge Lewis T. Babcock on 1/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03366-GPG
JEREMY D. HOWARD,
Plaintiff,
v.
RICK RAEMISCH, Or Current Executive Director of CDOC,
PAMELA PLOUGH, Or Current Warden of Cañon Minimum Center-ACC, FMCC, SCC,
JOHN SUTHERS, Or The Current Colorado Attorney General,
ADRIENNE GREENE, Denver Chief Deputy District Attorney, and
REBEKKA HIGGS, Denver Public Defender,
Defendants.

ORDER DISMISSING CASE

Jeremy D. Howard initiated this action by filing pro se a pleading titled, “Criminal
Complaint.” On December 11, 2014, Magistrate Judge Gordon P. Gallagher reviewed
the pleading, determined that Mr. Howard is challenging vested good/earned time
credits, his disciplinary record, and possibly a State of Colorado conviction, and directed
Mr. Howard to cure certain deficiencies. Magistrate Judge Gallagher specifically
directed Mr. Howard to submit his claims on an appropriate Court-approved form and
either to pay a filing fee or in the alternative submit a request to proceed pursuant to 28
U.S.C. § 1915.
Mr. Howard then submitted a Motion to Withdraw, ECF No. 7, to the Court on
January 22, 2015. In the Motion, Mr. Howard states that he desires to “withdraw his
petition for a federal habeas corpus 2254 motion for post-conviction relief.” ECF No. 7
at 1. Mr. Howard sets forth the merits of his claims, ask for assistance from the Court in
obtaining relief, but concludes that he is withdrawing the action because he has not
exhausted state remedies.

The Court must construe the Motion liberally because Mr. Howard 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 Motion as a Notice of Voluntary Dismissal
filed pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of January 22, 2015, the
date the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
Accordingly, it is
ORDERED that the Motion to Withdraw, 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
January 22, 2015, the date Mr. Howard filed the Notice in this action. It is
FURTHER ORDERED that the action is dismissed without prejudice.
DATED at Denver, Colorado, this 26th day of

January

, 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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