Kessler v. Schroetlin et al

Filing 9

ORDER DISMISSING CASE by Judge Lewis T. Babcock on 2/18/15: 8 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-03445-GPG
DANIEL KESSLER,
Plaintiff,
v.
BRETT SCHROETLIN,
ROD JOHNSON,
CORPORAL WIZER (first unknown), and
GRAND COUNTY SHERIFF’S DEPARTMENT,
Defendants.

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 Prisoner’s Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28
U.S.C. § 1915 and Fed. R. App. P. 24 (ECF No. 3). On January 5, 2015, 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. On January 27, 2015,
Magistrate Judge Gallagher entered a minute order granting Mr. Kessler additional time
to cure the deficiencies.
Mr. Kessler has not cured the deficiencies in this action. Instead, on February
17, 2015, he filed a Motion to Withdraw Complaint (ECF No. 8) stating he wishes to
pursue a pending state court appeal. 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. 8) 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

day of

February

, 2015.

BY THE COURT:

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

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