Scott v. United States Government et al

Filing 9

ORDER granting 8 "Motion to With-Draw § 2241 and Request to Repetition for Records and Assistance for Relief of Treaty Violations," denying 4 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, and dismissing this action, by Judge Lewis T. Babcock on 3/7/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02857-GPG
GARRY DON SCOTT, JR.,
Petitioner,
v.
UNITED STATES GOVERNMENT, and
THE STATE OF OKLAHOMA,
Respondents.

ORDER DISMISSING CASE

Petitioner, Garry Don Scott, Jr., is a prisoner in the custody of the Federal Bureau
of Prisons at the Federal Correctional Institution in Florence, Colorado. On December
30, 2015, Mr. Scott submitted to the Court for filing a pro se “Petition for Records and
Assistance for Relief of Treaty Violations” (ECF No. 1) asking the Court, in part, to vacate
the sentence he is serving. Based on the request to vacate his sentence, the instant
habeas corpus action was commenced and, on January 5, 2016, Magistrate Judge
Gordon P. Gallagher ordered Mr. Scott to cure certain deficiencies within thirty days if he
wishes to pursue any habeas corpus claims. Mr. Scott specifically was ordered to file on
the proper form an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
and either to pay the $5.00 filing fee for a habeas corpus action or to file a properly
supported Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Corpus Action. Mr. Scott was warned that the action would be
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dismissed if he failed to cure all of the deficiencies within the time allowed.
On January 20, 2016, Mr. Scott filed a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4) along with a certified copy of his
inmate trust fund account statement. On February 9, 2016, Magistrate Judge Gallagher
entered a minute order advising Mr. Scott that he had not cured all of the deficiencies
because he had not filed on the proper form an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. Magistrate Judge Gallagher directed Mr. Scott to cure
this remaining deficiency by March 4, 2016, and reminded him that the action would be
dismissed without further notice if he failed to cure the remaining deficiency within the
time allowed.
On February 22, 2016, Mr. Scott filed a letter (ECF No. 6) seeking clarification.
On February 23, 2016, Magistrate Judge Gallagher entered a minute order granting the
request for clarification. Magistrate Judge Gallagher explained that this habeas corpus
action had been commenced because Mr. Scott requested to have his sentence vacated
in his original pleading. Magistrate Judge Gallagher also advised Mr. Scott that, if he
does not intend to pursue any habeas corpus claims in this action, he should advise the
Court of that fact and the action would be dismissed. Alternatively, Magistrate Judge
Gallagher directed Mr. Scott to file an application for a writ of habeas corpus on the proper
form if he does intend to pursue any habeas corpus claims in this action. Mr. Scott again
was reminded that the action would be dismissed without further notice if he failed to cure
the remaining deficiency within the time allowed.
Mr. Scott has not cured the remaining deficiency as directed. Instead, on March

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3, 2016, he filed a “Motion to With-Draw § 2241 and Request to Repetition for Records
and Assistance for Relief of Treaty Violations” (ECF No. 8).

Mr. Scott asserts in the

motion to withdraw that he already has challenged his sentence based on alleged treaty
violations in a habeas corpus application that was denied, see Scott v. Warden, No.
15-cv-02603-LTB (D. Colo. Feb. 8, 2016), and it would be a waste of resources to file
another habeas corpus action without counsel. He also asserts in the motion to
withdraw that his intention in submitting his original pleading to the Court was to give the
United States Government notice and an opportunity to cure a treaty violation before he
continues with a class action and that he currently is waiting for a state court ruling and a
response from the United States Department of Justice before deciding what further
action he should take. The Court construes the motion to withdraw as a notice of
voluntary dismissal because it is apparent that Mr. Scott does not intend to pursue any
habeas corpus claims in the instant action.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Scott
Amay 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

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ORDERED that the “Motion to With-Draw § 2241 and Request to Repetition for
Records and Assistance for Relief of Treaty Violations” (ECF No. 8), which the Court
construes as a notice of voluntary dismissal, is granted and the action is dismissed
without prejudice. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4) is denied as moot.
DATED at Denver, Colorado, this

7th

day of

March

, 2016.

BY THE COURT:

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

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