Ashley v. Milyard

Full title: MARK R. ASHLEY, Applicant, v. WARDEN MILYARD, Sterling Corr. Fac., and…

Court: United States District Court, D. Colorado

Date published: Apr 13, 2007

Civil Action No. 07-cv-00452-BNB (D. Colo. Apr. 13, 2007)

Opinion

Civil Action No. 07-cv-00452-BNB.

April 13, 2007

ORDER DISMISSING CASE

ZITA WEINSHIENK, Senior District Judge

Applicant Mark R. Ashley initiated this action by filing a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. On March 9, 2007, Magistrate Judge Boyd N. Boland ordered Mr. Ashley to show cause why the Application should not be denied for failure to exhaust state court remedies.

On April 9, 2007, Mr. Ashley, filed a Response to Magistrate Judge Boland's Order to Show Cause. In the Response, Mr. Ashley requests that the Court dismiss the instant action without prejudice so that he may properly exhaust his state court remedies. The Court must construe the Response liberally because Mr. Ashley is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). Accordingly, the Court will construe the Response as a Notice of Voluntary Dismissal filed pursuant to Fed.R.Civ.P. 41(a)(1) and dismiss the action.

Rule 41(a)(1) provides that "an action may be dismissed by the [applicant] without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment. . . ." No answer has been filed by Respondents 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) (2^d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2^d 501, 507 (10^th Cir. 1968). The Notice, therefore, closes the file as of April 9, 2007. See Hyde Constr. Co., 388 F.2^d at 507. Accordingly, it is

ORDERED that the Response is construed as a Notice of Voluntary Dismissal filed 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 April 9, 2007, the date Mr. Ashley filed the Notice in the action. It is

FURTHER ORDERED that judgment is entered in favor of Respondents and against Applicant.