Opinion
Civil Action No. 12-cv-02380-BNB
10-24-2012
GREG MURRAY, Plaintiff, v. DAVID BERKABILE, PAUL LAIRD, DIANE KRIST, CHARLES SAMUELS, JR., W. HEIM, L. REDDING, PATRICIA RANGEL, A. OSAGIE, RICHARD MADISON, C. WILSON, D.O., FEDERAL BUREAU OF PRISONS, Defendants.
ORDER OF DISMISSAL
Plaintiff, Greg Murray, is in the custody of the federal Bureau of Prisons and is incarcerated currently at ADX-Florence, Colorado. He initiated this action by filing pro se a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff asserts claims against the Defendants for violation of his constitutional rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He has been granted leave to proceed in forma pauperis and has paid an initial partial filing fee.
On October 19, 2012, Mr. Murray filed a "Motion to Voluntarily Dismiss" (ECF No. 8) in which he states that he voluntarily dismisses this action without prejudice.
The Court must construe the Motion liberally because Mr. Murray 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). However, the Court should not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will construe the Motion liberally as a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
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); Janssen v. Harris, 321 F.3d 998,1000 (10th Cir. 2003). The Motion, therefore, closes the file as of October 19, 2012. 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 October 19, 2012, the date Mr. Murray filed the Motion in this action.
DATED at Denver, Colorado, this 24th day of October, 2012.
BY THE COURT:
__________________
LEWIS T. BABCOCK, Senior Judge
United States District Court