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, )

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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 2

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