Opinion
Civil Action No. 15-cv-01967-LTB
09-30-2015
MATTHEW S. GOMEZ, Plaintiff, v. RICK RAEMISCH, Executive Director of CDOC, Defendant.
ORDER DISMISSING CASE
Plaintiff, Matthew S. Gomez, initiated this action pro se on September 9, 2015, by submitting a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On September 28, 2015, Plaintiff filed a letter wherein he requests that the Court dismiss this lawsuit (ECF No. 5). For the reasons stated below, this lawsuit will be dismissed without prejudice.
Fed. R. Civ. P. 41(a)(1) provides that "the 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 a motion for summary judgment . . . ." In this case, no responsive pleading has been filed by the Defendants. 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) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). Plaintiff's Letter, therefore, closes the file as of September 28, 2015. Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the action is dismissed 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 September 28, 2015, the date Plaintiff filed his Letter (ECF No. 5) requesting voluntary dismissal of this action. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED September 30, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court