Opinion
Civil Action No. 14-cv-00850-BNB
04-18-2014
LEILA MCCOY, also known as LEILA MARIE MCCOY Plaintiff, v. THOMAS KENNEDY, CAROL WEISICH, SHIRLEY RUDD, ROSLYN HENCE-RANDALL, BRIAN FIELDS, CO DEPT. OF HUMAN SERVICES, and EL PASO COUNTY DEPT. OF HUMAN SERVICES, Defendants.
ORDER DISMISSING CASE
Plaintiff, Leila McCoy, also known as Leila Marie McCoy, resides in Colorado Springs, Colorado. She submitted pro se a Complaint (ECF No. 1) for money damages, a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3), and a Motion [to] Appoint Pro Bono Counsel as Reasonable Accomodation [sic] for Blind Litigant (ECF No. 4). The § 1915 motion was granted. The motion to appoint counsel was denied as premature.
On March 26, 2014, Magistrate Judge Boyd N. Boland ordered Ms. McCoy to file an amended Complaint. On April 16, 2014, instead of filing the amended Complaint as directed, Ms. McCoy filed a motion titled "Motion for Dismiss [sic] Without Prejudice Defendants Holding Petitioner's Children Hostage" (ECF No. 6). The Court must construe Ms. McCoy's motion to dismiss liberally because she 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). 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, Ms. McCoy "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 for Dismiss [sic] Without Prejudice Defendants Holding Petitioner's Children Hostage" (ECF No. 6) that Plaintiff, Leila McCoy, also known as Leila Marie McCoy, filed pro se on April 16, 2014. It is
FURTHER ORDERED that the voluntary dismissal is effective as of April 16, the date the notice of voluntary dismissal was filed in this action.
DATED at Denver, Colorado, this 18th day of April, 2014.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court