Opinion
Civil Action No. 15-cv-00096-GPG
06-18-2015
EKUETA PALEGA, Plaintiff, v. D. DENHAM, Warden, FEDERAL BUREAU OF PRISONS, and PRESENTENCE REPORTER (PSR), Defendants.
ORDER DISMISSING CASE
Plaintiff, Ekueta Palega, is in the custody of the Federal Bureau of Prisons (BOP) at the Federal Correctional Institution in Englewood, Colorado. He initiated this action on January 14, 2015 by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, in which he challenges his prison security classification.
On January 15, 2015, Magistrate Judge Gordon P. Gallagher entered an Order Directing Applicant to Cure Deficiencies within thirty days. (ECF No. 4). Specifically, Magistrate Judge Gallagher informed Mr. Palega that his request for an order directing the BOP to modify his security classification so that Applicant can be considered for minimum security housing challenges the conditions of his confinement, not the legality of his custody, and therefore must be raised in a civil rights proceeding. See Mcintosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997). Accordingly, Magistrate Judge Gallagher directed Mr. Palega to submit his claims on the court-approved Prisoner Complaint form, and to either pay the $400.00 filing fee, or submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
After being granted an extension of time, Mr. Palega filed a Prisoner Complaint, in compliance with the January 15, 2015 Order, on March 31, 2015. (ECF No. 8). Plaintiff filed an Amended Prisoner Complaint on May 21, 2015. (ECF No. 16). On May 26, 2015, Mr. Palega was granted leave to proceed in forma pauperis. (ECF No. 18).
On May 26, 2015, Magistrate Judge Gallagher entered an Order Directing Plaintiff to File an Amended Complaint within thirty days. (ECF No. 19). Judge Gallagher instructed Plaintiff that Defendant Presentence Reporter was not a proper party to this action. Magistrate Judge Gallagher further informed Plaintiff that he may sue Defendant Warden Denham in her official capacity for prospective injunctive relief; however, the facts alleged in the Amended Complaint failed to state an arguable Fifth Amendment due process claim.
On June 16, 2015, Mr. Palega filed a "Motion to Withdraw Proceeding" (ECF No. 20), in which he asks the Court to dismiss this action without prejudice so that he "can fully develop a proper record."
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 responsive pleading has been filed by the 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 June 16, 2015. 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 June 16, 2015, the date Plaintiff filed a "Motion to Withdraw Proceeding" (ECF No. 20) requesting voluntary dismissal of this action.
DATED June 18, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court