McCoy v. Kennedy

Filing 7

ORDER dismissing this action without prejudice, as of 3/4/15, by Judge Lewis T. Babcock on 3/6/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00113-GPG
LEILA McCOY,
Plaintiff,
v.
THOMAS KENNEDY,
Defendant.

ORDER DISMISSING CASE

Plaintiff currently resides in Colorado Springs, Colorado. She initiated this action
on January 16, 2015, by filing a Complaint and a Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. On January 20, 2015, Magistrate Judge
Gordon P. Gallagher entered an order that directed Plaintiff to submit her request to
proceed pursuant to § 1915 on a proper Court-approved form, which is titled,
“Application to Proceed in District Court Without Prepaying Fees or Costs.” On January
29, 2015, Plaintiff again filed a Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915. Plaintiff now has failed to cure the noted deficiency within the time
allowed.
On March 4, 2015, Plaintiff submitted a Motion to Dismiss Without Prejudice,
ECF No. 6. Plaintiff requests dismissal because she has found an attorney to assist her
with submitting the correct forms to the Court. Plaintiff contends that she does not have
access to a law library or the resources to pay for Lexis®, which is accessible for the
blind or vision impaired. Plaintiff further asserts that all motions for reasonable

accommodation and for appointment of pro bono counsel to assist her have been
denied forcing her to pay for legal services. Plaintiff also asserts that many of the
District of Colorado forms are not accessible with a screen reader for the blind, which is
available at her local library on a very limited basis.
The Court will construe the Motion as a Voluntary Notice of Dismissal and
dismiss the action for the following reasons.
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 . . . .” Defendant has not filed an answer 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 8-41 James Wm. Moore et al., Moore’s Federal Practice
§ 41.33(6)(a) (3d ed. 1997); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th
Cir. 1968). The case, therefore, will be closed as of March 4, 2015, the date the Notice
was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
The Court, however, notes that Plaintiff has not been denied any request for
reasonable accommodation in this case or in any of the four other cases she has filed in
this Court since January 5, 2015. See McCoy v. Cornelius, et al., No. 15-cv-00360GPG (D. Colo. Filed Feb. 20, 2015); McCoy v. Antioch Missionary Baptist Inc., et al.,
No. 15-cv-00238-GPG (D. Colo. Filed Feb. 4, 2015); McCoy v. Colo. Dep’t of Human
Serv., et al., No. 15-cv-00021-GPG (D. Colo. Filed Jan. 5, 2015); McCoy v. Colo.
Springs Police Dep’t, et al., No. 15-cv-00018-GPG (D. Colo. Filed Jan. 5, 2015).
In response to Plaintiff’s first request for permission to utilize electronic case

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filing, the Court denied the request as improper, but instructed Plaintiff to the Court’s
website to complete the proper form to register for ECF Account-Pro Se. See Case No.
15-cv-00018-GPG, ECF No. 8. When Plaintiff then submitted the proper form to
register for an account on January 26, 2015, in Case Nos. 15-cv-00018-GPG and 15cv-00021-GPG, the District of Colorado Case Management/Electronic Case Filing
(CM/ECF) Team contacted her on January 27, 2015, to inquire about the capabilities of
her computer and how training could be facilitated. Per the Team, Plaintiff indicated she
has limited access to the public library computer in Colorado Springs, but the computer
has a reader function/software program. The CM/ECF Team agreed to attempt to make
all accommodations possible for Plaintiff with the reader/software programs she has
available. Local Rules and CM/ECF rules were emailed to Plaintiff by the Team for
review prior to CM/ECF training. Plaintiff was directed to provide a telephone number
where she could be reached so that she could participate in the CM/ECF training, which
was scheduled for February 4, 2015. Plaintiff failed to provide a telephone number or
inform the Team whether she intended to participate in the training. As of the date of
this Order, Plaintiff has not communicated with the Court or the CM/ECF Team
regarding the Court’s available efforts to accommodate her.
The Court further notes that Plaintiff has not requested pro bono counsel in this
case. The only case in which she did request counsel is Case No. 15-cv-00021-GPG,
ECF Nos. 6 and 7. The request was denied as premature, Case No. 15-cv-00021GPG, ECF No. 12, because Case No. 15-cv-00021-GPG is pending initial review
pursuant to 28 U.S.C. § 1915 and D.C.COLO.LCivR 8.1(a).
Finally, the Court notes that not until Plaintiff submitted the Notice of Voluntary

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Dismissal did she inform the Court that she was having problems obtaining the correct
form for seeking leave to proceed in this case without payments of fees and costs. In
fact, in Case No. 15-cv-00018-GPG, ECF No. 6, filed on January 15, 2015, and in Case
No. 15-cv-00021-GPG, ECF Nos. 4 and 11, filed on January 5 and 15, 2015, she was
able to file the correct forms.
Nonetheless, pursuant to Plaintiff’s request, the Court will close the case as of
March 4, 2015. Accordingly, it is
ORDERED that the Voluntary Notice of Dismissal, ECF No. 6, is effective as of
March 4, 2015, the date Plaintiff filed the Notice in this action. It is
FURTHER ORDERED that the Complaint and action are dismissed without
prejudice.
DATED at Denver, Colorado, this 6th

day of

March

, 2015.

BY THE COURT:

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

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