Opinion
Civil Action No. 14-cv-00140-BNB
02-19-2014
JAY S. DEVAUGHN, Applicant, v. MYRON BATTS, Warden, Respondent.
ORDER DISMISSING CASE
Applicant, Jay S. DeVaughn, is a prisoner in the custody of the Federal Bureau of Prisons incarcerated at the Federal Correctional Institution in Big Springs, Texas. On January 17, 2014, Mr. DeVaughn filed pro se a document titled "Petition for Habeas Corpus" (ECF No. 1).
On January 21, 2014, Magistrate Judge Boyd N. Boland ordered Mr. DeVaughn to cure certain deficiencies within thirty days. Instead of complying with the January 21 order, Mr. DeVaughn, on February 14, 2014, filed a "Motion to Withdraw 'Petition for Habeas Corpus'" (ECF No. 4) informing the Court he should have filed the instant action in the Northern District of Texas rather than the District of Colorado, and asking that the habeas corpus petition be withdrawn.
The Court must construe liberally Mr. DeVaughn's motion because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the motion will be treated as a notice of voluntary dismissal.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. DeVaughn "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 the Respondent in this action. Pursuant to Fed. R. Civ. P. 41(a)(1)(B), the dismissal is without prejudice, unless otherwise stated. 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
ORDERED that the instant action is dismissed without prejudice pursuant to the notice of voluntary dismissal titled "Motion to Withdraw 'Petition for Habeas Corpus'" (ECF No. 4) that Applicant, Jay S. DeVaughn, filed pro se on February 14, 2014. It is
FURTHER ORDERED that the voluntary dismissal is effective as of February 14, the date the notice of voluntary dismissal was filed in this action.
DATED at Denver, Colorado, this 19th day of February, 2014.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court