Yawo Apetogbo v. Melissa Ortiz, et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

YAWO APETOGBO,

Petitioner, v. No. 26-cv-1885-SMD-JHR MELISSA ORTIZ, et al.,

Respondents.

ORDER OF VOLUNTARY DISMISSAL

This matter comes before the Court on Petitioner’s Notice of Withdrawal of Petition, (Doc. 5), filed June 12, 2026. Petitioner challenges his immigration custody at the Torrance County Detention Center. He initiated these proceedings on June 10, 2026 by filing a pro se Petition For a Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. 1). On June 12, 2026, counsel for Petitioner entered an appearance and filed the Notice of Withdrawal of Petition. (Docs. 4 and 5). Petitioner’s counsel explains that on June 10, 2026, Petitioner filed through counsel a separate petition seeking a writ of habeas corpus, which was opened as Case No. 1:26- cv-1891-MLG-JFR. (Doc. 5) at 1. Petitioner’s counsel states that Petitioner “wishes to withdraw the pro se Petition (Doc. 1) and proceed with representation by counsel in the proceeding numbered 1:26-cv-1891-MLG-JFR.” Id.

Rule 41(a) provides, in relevant part, that “the plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). Respondents have not yet filed an answer or a motion for summary judgment and, therefore, Petitioner “has an absolute right to dismiss without prejudice and no action is required on the part of the court.” Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003). Indeed, a notice of voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)() is “self-executing, .e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required.” Jd. (quoting Marex Titanic, Inc. v. The Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993)). Accordingly, in light of the relief sought by Petitioner, the Court liberally construes Petitioner’s Notice of Withdrawal of Petition as a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41l(a)(1)(A)G). See id. (affirming the construction of a pro se letter requesting that a case be dismissed without prejudice as a notice of voluntary dismissal under Fed. R. Civ. P. 41(a)(1)).

IT IS THEREFORE ORDERED that Petitioner’s Petition For a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) is voluntarily DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)G); and the Court will enter a separate Judgment disposing of this civil habeas case.

UNITED STATES DISTRICT JUDGE