Opinion
Civil Action No. 13-cv-03108-BNB
12-23-2013
LARRY W. MARQUARDT, Plaintiff, v. JOE PELLE, Sheriff, BOULDER COUNTY COMMISSIONERS, ARAMARK CORPORATION, ARAMARK DESIGNATED DIETICIAN FOR BOULDER COUNTY JAIL, Defendants.
ORDER DISMISSING CASE
Plaintiff, Larry W. Marquardt, is detained in the Boulder County Jail. He initiated this action by submitting a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 complaining about his diet at the Jail for the past twelve months.
On November 19, 2013, Magistrate Judge Boyd N. Boland reviewed Plaintiff's filing and determined that it was deficient. Magistrate Judge Boland directed Mr. Marquardt to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, along with a certified copy of his prisoner's trust fund account statement for the six-month period preceding his filing, within thirty days of the November 19 Order. Alternatively, Plaintiff was directed to pay the $400.00 filing fee.
Mr. Marquardt filed a Letter with the Court on November 27, 2013, stating that he was having difficulty obtaining a copy of his inmate account statement from jail officials. In a December 2, 2013 Minute Order, Magistrate Judge Boland granted Plaintiff an extension of time, until January 2, 2014, to comply with the November 19 Order.
On December 18, 2013, Mr. Marquardt filed a Letter with the Court [Doc. # 7] stating that he wished to withdraw his Complaint in this action.
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 . . . ." No answer or motion for summary judgment has been filed by Defendants in this action. 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). The motion, therefore, closes the file as of December 18, 2013. See 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 December 18, 2013, the date Plaintiff filed the Letter stating that he wished to withdraw his Complaint in this action.
DATED at Denver, Colorado, this 23rd day of December, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court