Opinion
Civil Action 22-cv-1100-WJM-KLM
01-12-2023
DANIEL STEPHEN KESSLER, Plaintiff, v. BRETT SCHROETLIN, AARON GLEN TRAINOR, and GRAND COUNTY SHERIFF DEPARTMENT, Defendants.
ORDER DISMISSING ACTION WITHOUT PREJUDICE
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
Plaintiff Daniel Stephen Kessler sues Defendants Grand County Sheriff Department, Sheriff Brett Schroetlin, and Sergeant Aaron Trainor pro se for violation of his civil rights. (ECF No. 15 at 4-5.) On September 30, 2022, United States Magistrate Judge Kristen L. Mix ordered Kessler to “show cause why this Court should not recommend that his case be dismissed pursuant to [Federal Rule of Civil Procedure] 41(b) for failure to adequately prosecute his case and comply with a Court Order” (“Orde to Show Cause”) to file an amended complaint by August 15, 2022. (ECF No. 29 (citing ECF No. 18).)
In response to Judge Mix's Order to Show Cause, Kessler filed the Motion to Dismiss (“Motion”) on October 27, 2022, which is now before the Court. (ECF No. 31.) In the Motion, he asks that the Court dismiss this action without prejudice so he may have more time to investigate his claim. (Id. at 1.) The Court must construe the Motion liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For this reason, and because no defendant has “serve[d] either an answer or a motion for summary judgment,” the Court construes the Motion as a Notice of Voluntary Dismissal (“Construed Notice”). Fed.R.Civ.P. 41(a)(1)(A)(i).
Rule 41(a)(1)(A) 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 ....” Id. Voluntary dismissal under Rule 41(a)(1)(A)(i) is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is necessary. Janssen v. Harris, 321 F.3d 998, 1000-01 (10th Cir. 2003) (finding that a letter from a pro se litigant requesting dismissal without prejudice before an answer or motion for summary judgment had been filed was a selfexecuting notice of dismissal, even though the “letter did not cite Rule 41(a)(1)[(A)](i)”). Therefore, this action will be closed as of October 27, 2022, the date the Construed Notice was filed with the Court. See id.
Accordingly, the Court ORDERS
1. That the Motion to Dismiss (ECF No. 31) is construed as a Notice of Voluntary Dismissal filed pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) and is effective as of October 27, 2022, the date the Notice was filed with the Court; and
2. This action is DISMISSED WITHOUT PREJUDICE.