Staszak v. Bolton et al

Filing 10

ORDER dismissing this action without prejudice, as of 5/1/15, by Judge Lewis T. Babcock on 5/5/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00597-GPG
JOHN R. STASZAK,
Plaintiff,
v.
ROBBIE BOLTON,
DONNA L. GONZALES,
DANA KRAKOW,
LEONARD WOODSON III,
ASTRIA LOMBARD,
ANTHONY DECESARO, and
RICK RAEMISCH,
Defendants.

ORDER DISMISSING CASE

Plaintiff, John R. Staszak, is in the custody of the Colorado Department of
Corrections at the Colorado Territorial Correctional Facility in Canón City, Colorado. He
initiated this action by filing a Prisoner Complaint asserting claims under 42 U.S.C.
§ 1983. Mr. Staszak has been granted leave to proceed in forma pauperis.
On April 9, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Prisoner
Complaint and determined that it was deficient because Plaintiff failed to allege the
personal participation of each named Defendant in a deprivation of his constitutional
rights, and also failed to allege facts to show an arguable violation of his First and
Eighth Amendment rights. (ECF No. 5). Magistrate Judge Gallagher directed Mr.
Staszak to file an Amended Complaint in thirty (30) days to cure the defects in his
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original pleading. (Id.). Magistrate Judge Gallagher further warned Plaintiff that failure
to file an Amended Complaint by the court-ordered deadline may result in dismissal of
part or all of this action without further notice. (Id.).
On April 23, 2015, Mr. Staszak filed a Letter (ECF No. 6) with the Court in which
he stated that he may no longer wish to pursue this action. He also requested that the
Court send him a copy of the Prisoner Complaint form.
Magistrate Judge Gallagher issued a minute order on April 27, 2015, informing
Plaintiff that if he wished to voluntarily dismiss this action, he should file a motion for
voluntary dismissal with the Court. (ECF No. 7). Magistrate Judge Gallagher further
directed the Clerk of the Court to mail Plaintiff a copy of the court-approved Prisoner
Complaint form. (Id.). Mr. Staszak was granted an additional thirty (30) days from the
date of the minute order to comply with the April 9, 2015 Order directing him to file an
amended complaint. (Id.).
On May 1, 2015, Mr. Staszak filed a “Motion to Withdraw Complaint.” (ECF No.
9). In the Motion, he requests that the Court dismiss this action without prejudice. (Id.).
Fed. R. Civ. P. 41(a)(1) 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 or motion for summary
judgment has been filed by Defendants in this action. Further, a voluntary dismissal
under Rule 41(a)(1) 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 motion, therefore, closes the file as of May 1, 2015. See Hyde
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Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the action is dismissed pursuant to Fed. R. Civ. P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of May 1, 2015, the date Plaintiff filed the “Motion to Withdraw Complaint.”
DATED May 5, 2015, at Denver, Colorado.
BY THE COURT:

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

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