Olguin v. Trani
ORDER dismissing this action without prejudice, as of 10/6/15, by Judge Lewis T. Babcock on 10/15/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01643-GPG
FELIX PAUL OLGUIN,
TRAVIS TRANI, and
ALL OTHERS WHO ARE ACTUALLY RESPONSIBLY [SIC], ETC.,
ORDER DISMISSING CASE
Plaintiff, Felix Paul Olguin, is a prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the Centennial Correctional Facility.
Mr. Olguin initiated this action on July 31, 2015, by filing a document tiled “Motion and
brief for a permanent injunction and for immediate and proper relief and intervention and
motion for temporary restraining order and preliminary injunction” (ECF No. 2) and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 1).
On August 4, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
documents and found them to be deficient. Specifically, Magistrate Judge Gallagher
directed Plaintiff to cure enumerated deficiencies, including submitting a complete §
1915 motion and affidavit, along with a signed authorization to calculate and disburse
filing fee payments, as well as a Prisoner Complaint on the proper Court-approved form.
(See ECF No. 4). In response, Plaintiff submitted documents titled “Notice to the Court”
(ECF No. 5) and a “Motion for enlargement of time and also combined with a motion for
an extension of time and allo [sic] for a continuance pursuant to Rule 56(f)” (ECF No. 6).
Magistrate Judge Gallagher granted Plaintiff’s request for an extension of time to cure
the designated deficiencies in this action. (See ECF No. 8).
On September 8, 2015, Plaintiff filed a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 9) and a document titled “Notice to
the Court an allo [sic] to all others” (ECF No. 10). Magistrate Judge Gallagher granted
Plaintiff leave to proceed pursuant to § 1915 without payment of an initial partial filing
fee. (See ECF No. 11). In a minute order, Magistrate Judge Gallagher again instructed
Plaintiff to file a Prisoner Complaint on the proper form to cure the remaining deficiency
and directed the clerk of the court to mail to Plaintiff a blank copy of the Prisoner
Complaint. Magistrate Judge Gallagher warned Plaintiff that if he failed to cure the
remaining deficiency within thirty days from the date of the minute order, the instant
action would be dismissed without further notice. (See ECF No. 12).
On October 8, 2015, Plaintiff submitted three documents tilted “Motion for
competency examination and for evaluation and for screening and for a hearing, and
also combined with a motion for an insanity examination and for evaluation and for
screening in a timely fasion [sic] and manner” (ECF No. 13), “Motion for hearing
pursuant to the Article 1 hearing” (ECF No. 14), and “Motion for a voluntary dismissal
pursuant to Fed. R. Civ. P. 41(b)” (ECF No. 15). In the motion for voluntary dismissal,
Plaintiff seeks dismissal of the action and requests that the Court consider the other
motions prior to granting the motion for voluntary dismissal. (Id. at 4).
Having reviewed the documents submitted by Plaintiff on October 6, 2015, the
Court finds that none of the documents cure the remaining deficiency. Moreover, the
Court will construe the “Motion for voluntary dismissal pursuant to Fed. R. Civ. P. 41(b)”
(ECF No. 15) as a Voluntary Notice of Dismissal and dismiss the action without
prejudice 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). Moreover, this voluntary dismissal “is of right, cannot be conditioned by the
court, and does not call for the exercise of any discretion on the part of the court.” See
Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989). A notice of voluntary dismissal
ends the action and terminates federal jurisdiction except for the limited purpose of
reopening the case under Rule 60(b). Id. The case, therefore, will be closed as of
October 6, 2015, the date the Voluntary Notice of Dismissal was filed with the Court.
See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the Voluntary Notice of Dismissal, ECF No. 15, is effective as of
October 6, 2015, the date Plaintiff filed the Notice in this action. It is
FURTHER ORDERED that the action is dismissed without prejudice. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 15th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?