Opinion
Civil Action No. 11-cv-02112-BNB
12-20-2011
JEREMY PINSON, Plaintiff, v. FEDERAL BUREAU OF PRISONS, and UNITED STATES ATTORNEY, Defendants.
ORDER DISMISSING CASE
Plaintiff, Jeremy Pinson, is in the custody of the United States Bureau of Prisons and currently is incarcerated at the United States Penitentiary in Florence, Colorado. Mr. Pinson, acting pro se, initiated this action by filing a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Pinson also requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On November 15, 2011, the Court denied Mr. Pinson's request to proceed in forma pauperis under § 1915(g), because on three or more occasions he has brought an action that was dismissed on the grounds that it was frivolous and he fails to assert imminent danger of serious physical injury. Mr. Pinson was instructed to pay the $350.00 filing fee if he desired to proceed with this action.
On December 15, 2011, Mr. Pinson filed a Notice of Voluntary Dismissal claiming he is not able to pay the $350.00 filing fee. The Court must construe the pleading liberally because Mr. Pinson 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 Court, therefore, construes the pleading as a Notice of Dismissal filed pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of December 15, 2011, the date the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he must pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the pleading is construed as a Notice of Dismissal filed pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) and is effective as of December 15, 2011, the date Mr. Pinson filed the Notice in this action. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
BY THE COURT:
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LEWIS T. BABCOCK, Judge
United States District Court