Opinion
Civil Action No. 07-cv-01840-BNB.
December 11, 2007
ORDER DISMISSING CASE
Applicant, Andrew Kachik, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Sterling, Colorado, correctional facility. He initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). He has paid the $5.00 filing fee.
On October 17, 2007, Magistrate Judge Boyd N. Boland ordered Mr. Kachik to show cause within thirty days why the habeas corpus application should not be denied and the action dismissed for failure to exhaust state remedies. On November 16, 2007, Mr. Kachik submitted to and filed with the Court a document titled "Order to Show Cause" informing the Court that he wished to dismiss his application voluntarily and without prejudice while he exhausts state remedies.
The Court must construe liberally the November 16, 2007, document because Mr. Kachik filed the document on his own behalf. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, the Court will construe the November 16 document liberally as a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
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 response has been filed by Respondents in this action. A voluntary dismissal pursuant to 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). The notice closes the file. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the document titled "Order to Show Cause" that Applicant, Andrew Kachik, submitted to and filed with the Court pro se on November 16, 2007, is construed liberally as a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1). It is
FURTHER ORDERED that the habeas corpus application is denied and the action is dismissed without prejudice. It is
FURTHER ORDERED that the voluntary dismissal is effective as of November 16, 2007, the date the liberally construed notice of dismissal was filed in this action.