Opinion
Civil Action No. 11-cv-02796-BNB
08-07-2012
PAUL LANAKILA CAMPOS, Plaintiff, v. C. A. DANIELS, Individually, W. HUTCHINS, Individually, D. ALLRED, D.O., C.D., Individually, COLLINS, FIRST NAME UNKNOWN ("FNU"), Individually, SEVERN, "FNU," MD, PHD, Individually, J. LORINCZ, DMD, Individually, ANTHONY, "FNU," Individually, DOERER, "FNU," Individually, B. MARTINEZ, "FNU," Individually, VIGIL, "FNU," Registered Nurse ("RN"), Individually, MCALISTER, "FNU," Individually, SHORT, "FNU," Individually, DRIVER, "FNU," Individually, HAAS, "FNU," Property Officer, Individually, COREY, "FNU," Individually, THOMPSON, "FNU," Individually, DELGADO, "FNU," Individually, COLINS, "FNU," Individually, JOHN DOES 1-10, and JANE DOES 1-10, Defendants.
ORDER DISMISSING CASE
Plaintiff, Paul Lanakila Campos, was a prisoner in the custody of the United States Bureau of Prisons incarcerated at the United States Penitentiary, High Security, in Florence, Colorado, when he filed pro se a prisoner complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 288 (1971). He since has informed the Court that he has been transferred to the Federal Correctional Complex in Coleman, Florida. ECF No. 44. He was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On February 24, 2012, the Court entered an order (ECF No. 23) directing Mr. Campos to file within thirty days an amended complaint that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and Local Rule 10.1E. and G of the Local Rules of Practice for this Court. On April 4, 2012, after being granted an extension of time, Mr. Campos filed an amended Bivens complaint for damages titled "First Amended Complaint" (ECF No. 29). On May 3, 2012, the Court entered an order (ECF No. 33) directing Mr. Campos to file within thirty days a second and final amended complaint that complied with Rule 8. On August 3, 2012, after being granted extensions of time, Mr. Campos filed a "Notice of Voluntary Dismissal" (ECF No. 52) asking to dismiss voluntarily the instant action.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Campos "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 response has been filed by Defendants 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.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and, therefore, in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Campos files a notice of appeal he also must pay the full $455.00 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the instant action is dismissed without prejudice pursuant to the "Notice of Voluntary Dismissal" (ECF No. 52) that Plaintiff, Paul Lanakila Campos, filed on August 3, 2012. It is
FURTHER ORDERED that the voluntary dismissal is effective as of August 3, 2012, the date the notice of voluntary dismissal was filed in this action. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr. Campos at the Federal Correctional Complex in Coleman, Florida, his current address. It is
FURTHER ORDERED that any pending motions are denied as moot. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 7th day of August , 2012.
BY THE COURT:
________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court