Opinion
Civil Action No. 11-cv-02128-BNB
11-07-2011
CHRISTOPHER HIJRAH MITCHELL, a.k.a. C. ELIJAH HAKEEM MUHAMMAD, a.k.a. CHRISTOPHER MITCHELL, Plaintiff, v. BLAKE R. DAVIS, Warden, Defendant.
ORDER DISMISSING CASE
Plaintiff is in the custody of the United States Bureau of Prisons and currently is incarcerated at ADX in Florence, Colorado. Acting pro se, Plaintiff initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Magistrate Judge Boyd N. Boland entered an order on August 25, 2011, finding that the action more properly was asserted pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and instructing Plaintiff to submit his claims on a Court-approved form used in filing prisoner complaints. Plaintiff requested an extension of time to comply, which the Court granted on September 29, 2011. Plaintiff then filed a Notice of Voluntary Dismissal on November 1, 2011. The Court must construe the Notice liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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 . . . ." Defendant has not filed an answer in this action. Further, a 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. See 8-41 James Wm. Moore et al., Moore's Federal Practice § 41.33(6)(a) (3d ed. 1997); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). The case, therefore, will be closed as of November 1, 2011, the date the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the Notice of Voluntary Dismissal, Doc. No. 5, is effective as of November 1, 2011, the date Plaintiff filed the Notice in this action.
BY THE COURT:
LEWIS T. BABCOCK, Judge
United States District Court