Opinion
Civil Action No. 12-cv-00063-REB-CBS
03-26-2012
BOB ALLEN CUSTARD, Plaintiff, v. DAVID ALLRED, BENJAMIN BRIESCHKE, CLEMENTI, MARK COLLINS, COOK, BLAKE DAVIS, ANDREW FENLON, FOSTER, HUDDLESTON, J. JOHNSON, KELLAR, RICHARD MADISON, T. MANSPEAKER, MITCHELL, ANTHONY OSAGIE, P. RANGEL, STEVEN ROGERS, SMITH, TENA SUDLOW, VANAMAN, R. WILEY, C.A. WILSON, AND BUREAU OF PRISONS, Defendants.
ORDER
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on: (1) Mr. Custard's "Motion to Dismiss and/or Otherwise Discharge Defendant Bureau of Prisons from this Civil Action" (filed March 16, 2012) (Doc. # 36); and (2) "Combined Motion for Judicial Notice of these Facts - and - Motion for the Court to Order the BOP/ADX Inmate Trust Fund Account Supervisor to Pay from Pl[aintiff's] Account an Initial Partial Filing Fee - or - 20% of Recent Refunds" (filed March 16, 2012) (Doc. # 37). Pursuant to the Order of Reference dated March 2, 2012 (Doc. # 27) and the memorandum dated March 19, 2012 (Doc. # 40), these matters were referred to the Magistrate Judge.
First, Mr. Custard moves to "Dismiss and/or Otherwise Discharge Defendant Bureau of Prisons from this Civil Action." Defendant Bureau of Prisons does not object to Mr. Custard's Motion. (See "Response to Motion to Dismiss Party Bureau of Prisons [Dkt. No. 36)). A "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 of a motion for summary judgment." Fed. R. Civ. P. Rule 41(a)(1)(A)(i). "The filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) does not require an order of the court." Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003) (citation omitted). See also Marex Titanic, Inc. v. The Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (stating voluntary dismissal is "self-executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required"). Defendants named in Mr. Custard's Amended Complaint (Doc. # 14) have not filed an answer or a motion for summary judgment. Mr. Custard's Motion may be treated as a notice of dismissal pursuant to Rule 41(a)(1)(A)(i), voluntarily dismissing Defendant Bureau of Prisons from this civil action without the necessity of a court order
Second, Mr. Custard asks the court to order prison officials to send 20% of his current account balance to the court's clerk. Pursuant to the court's February 27, 2012 "Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915" (Doc. # 24), the responsibility remains with Mr. Custard for ensuring that monthly filing fee payments are made or for demonstrating why a payment cannot be made. This is the standard practice of the U.S. District Court for the District of Colorado in all prisoner cases. Mr. Custard must monitor his own financial resources and comply with the applicable rules and regulations existing at the facility where he is incarcerated to meet his monthly filing fee obligations. The court notes that while Mr. Custard's inmate trust account statement previously reflected that he had no funds, he later received two refunds to his account that may enable him to pay a partial filing fee.
Accordingly, IT IS ORDERED that:
1. Mr. Custard's "Motion to Dismiss and/or Otherwise Discharge Defendant Bureau of Prisons from this Civil Action" (filed March 16, 2012) (Doc. # 36) is treated as a notice of dismissal pursuant to Rule 41(a)(1)(A)(i), voluntarily dismissing Defendant Bureau of Prisons from this civil action without the necessity of a court order. The Clerk of the Court shall remove Defendant Bureau of Prisons from the caption of this civil action.
2. Mr. Custard's "Combined Motion for Judicial Notice of these Facts - and -Motion for the Court to Order the BOP/ADX Inmate Trust Fund Account Supervisor to Pay from Pl[aintiff's] Account an Initial Partial Filing Fee - or - 20% of Recent Refunds" (filed March 16, 2012) (Doc. # 37) is DENIED.
DATED at Denver, Colorado, this 26th day of March, 2012.
BY THE COURT:
Craig B. Shaffer
United States Magistrate Judge