Opinion
Civil Action No. 07-cv-01056-BNB.
June 19, 2007
ORDER DISMISSING CASE
Applicant Shawn Souva is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Sterling, Colorado, correctional facility. He initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). He has paid the $5.00 filing fee.
On May 25, 2007, Magistrate Judge Boyd N. Boland ordered Mr. Souva to show cause within thirty days why the habeas corpus application should not be denied for failure to exhaust state remedies. On June 14, 2007, Mr. Souva submitted to and filed with the Court a document titled "Petitioner's Reponse [sic] to Court's Order to Show Cause" asking the Court either to stay his application while he exhausts state remedies or to dismiss his application voluntarily and without prejudice.
The Court must construe liberally the June 14, 2007, document because Mr. Souva filed the document on his own behalf. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, the Court will construe the June 14 document liberally as a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
Rule 41(a)(1) provides that "an action may be dismissed by the [applicant] without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment." No response has been filed by Respondents in this action. A voluntary dismissal pursuant to 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 notice closes the file. See Hyde Constr. Co. , 388 F.2d at 507. Accordingly, it is
ORDERED that the document titled "Petitioner's Reponse [sic] to Court's Order to Show Cause" that Applicant Shawn Souva submitted to and filed with the Court pro se on May 25, 2007, is construed liberally as a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1). It is
FURTHER ORDERED that the habeas corpus application is denied and the action is dismissed without prejudice. It is
FURTHER ORDERED that the voluntary dismissal is effective as of June 14, 2007, the date the liberally construed notice of dismissal was filed in this action. It is
FURTHER ORDERED that judgment is entered in favor of Respondents and against Applicant.