Opinion
Civil Action No. 11-cv-01190-BNB
09-07-2011
NICK MILLER, Plaintiff, v. UNITED STATES OF AMERICA, THE FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN, Director F.B.O.P., MICHAEL NALLEY, Regional Dir. F.B.O.P., RENEE GARCIA, Warden/F.C.I. Englewood, DR. THOMAS KRAUSE, Doctor/F.C.I. Englewood, DR. HIDEYATSUDA, Doctor/F.C.I. Englewood, MARK IPPOLITO, Head of Medical/F.C.I. Englewood, CHARLIE KUDLAUSKAS, P.A./F.C.I. Englewood, and HERIBERTO GARCIA, M.L.P./F.C.I. Englewood, Defendants.
ORDER DISMISSING CASE
Plaintiff, Nick Miller, is a prisoner in the custody of the United States Bureau of Prisons and he currently is incarcerated at a federal prison in Beaumont, Texas. Mr. Miller initiated this action by filing pro se a Prisoner Complaint (Doc. #1) and a document titled "Complaint of Law" (Doc. #2) in which he complains about the medical treatment he received while he was incarcerated at a federal prison in Colorado. On July 29, 2011, Magistrate Judge Boyd N. Boland entered an order directing Mr. Miller to file an amended complaint that complies with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure if he wishes to pursue his claims in this action. On August 26, 2011, Mr. Miller filed a motion (Doc. #16) asking the Court either to dismiss this action without prejudice because he needs additional time to prepare his case properly or to hold the action in abeyance for ninety days. Mr. Miller provides no explanation that would justify holding this action in abeyance. Therefore, the action will be dismissed.
Pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, Mr. Miller "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 Defendants in this action. As a result, the Court will construe Mr. Miller's motion filed on August 26 as a notice of voluntary dismissal. 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 If 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 motion to dismiss (Doc. #16) filed on August 26, 2011, is construed as a notice of voluntary dismissal. It is
FURTHER ORDERED that the instant action is dismissed without prejudice pursuant to the notice of voluntary dismissal. It is
FURTHER ORDERED that the voluntary dismissal is effective as of August 26, 2011, the date the notice of voluntary dismissal was filed in this action.
DATED at Denver, Colorado, this 6th day of September 2011.
BY THE COURT:
LEWIS T. BABCOCK, Senior Judge
United States District Court
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01190-BNB
Nick Miller
Reg. No. 08801-029
FCI Beaumont
PO Box 26040
Beaumont, TX 77720
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on September 7, 2011.
GREGORY C. LANGHAM, CLERK
By: ____________________
Deputy Clerk