                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            APR 1 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 FRANCIS T. DEUTSCH,

               Plaintiff-Appellant,                      No. 03-1489
       v.                                                (D. Colorado)
 E.J. GALLEGOS, Warden, F.P.C.                       (D.C. No. 03-Z-1836)
 Florence,

               Defendant-Appellee.




                                      ORDER


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Francis T. Deutsch, a federal prisoner appearing pro se, appeals following

the district court’s dismissal of his Bivens action and the denial of his motion to

reconsider. Because the district court properly found that Mr. Deutsch voluntarily

dismissed his claims, we conclude that we have no jurisdiction, and we dismiss

this appeal.



                                I. BACKGROUND

      On September 9, 2003, Mr. Deutsch submitted to the district court a pro se

“Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.”
However, the district court determined that Mr. Deustch was asserting civil rights

claims rather than habeas corpus claims, by alleging that he was denied his right

to free exercise of religion in violation of the First and Fourteenth Amendment.

Rec. doc. 2, at 2 (Dist. Ct. Order, filed Sept. 18, 2003). Therefore, the district

court liberally construed Mr. Deutsch’s suit as asserting civil rights claims

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971), and directed him to file a “Prisoner Complaint” form. Id.

      In response to the district court’s order, Mr. Deustch filed a document on

October 15, 2003, titled “Applicant’s Motion for Preliminary Injunction,

Withdrawal of Civil Action Without Prejudice, and Adequate Time and

Opportunity to Cure Any Deficiencies.” Rec. doc. 4, at 1. Mr. Deutsch’s

requests were contradictory. He first conceded that his action was more

appropriately filed as a Bivens action, which must be preceded by total exhaustion

of administrative remedies. He then admitted that he had not yet exhausted the

administrative appeals process and stated that “he must withdraw his action at the

present time.” Id. at 3. Then, Mr. Deutsch requested the district court to issue an

injunction requiring the Federal Bureau of Prisons to allow him to exercise his

religion freely “while [Mr. Deutsch] exhausts administrative remedies and these

issues ripen for judicial review in a Bivins [sic] action.” Id. at 6.

      The district court construed Mr. Deutsch’s motion as a Notice of Voluntary


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Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) and ordered that

the dismissal was effective as of the motion’s date of filing, October 15, 2003.

The court dismissed the complaint and the action without prejudice and denied

Mr. Deutsch’s other requests as moot. Rec. doc. 5, at 2-3 (Dist. Ct. Order, filed

Nov. 4, 2003).

      On November 12, 2003, Mr. Deutsch filed a “Motion for Reconsideration”

asserting that even though his action had been dismissed, he should be able to

obtain his desired injunctive relief, citing Jackson v. District of Columbia, 254

F.3d 262 (D.C. Cir. 2001). Rec. doc. 8, at 2 (Motion for Reconsideration, filed

Nov. 12, 2003). The district court construed the motion as a motion to alter or

amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), and

denied it, finding that Mr. Deutsch had misread Jackson and that the court had no

authority to grant injunctive relief without a pending related action. Rec. doc. 18,

at 3-4 (Dist. Ct. Order, filed Dec. 24, 2003).

      Mr. Deutsch now appeals to this Court, asserting that (1) the district court

misapplied Jackson and erroneously denied him injunctive relief pending

exhaustion of his administrative remedies, (2) he has now exhausted his

administrative remedies, and the district court should reinstate his Bivens action

and grant him injunctive relief, and (3) the district court erred in “rais[ing] the

exhaustion of remedies defense sua sponte,” Aplt’s Br. at 9.


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                                  II. DISCUSSION

      “We review a district court’s ruling on a F ED . R. C IV . P. 59(e) motion under

an abuse of discretion standard.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th

Cir. 1997). “Under the abuse of discretion standard, a trial court’s decision will

not be disturbed unless the appellate court has a definite and firm conviction that

the lower court made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Id.

      Upon a review of the record, we hold that the district court properly

construed Mr. Deutsch’s motion filed on October 15, 2003, as a notice of

voluntary dismissal. Mr. Deutsch filed this motion before the defendants filed an

answer, see F ED . R. C IV . P. 41(a)(1), and he admitted that he had not exhausted

his administrative remedies and stated that “he must withdraw his action at the

present time.” Rec. doc. 4, at 3. Mr. Deutsch does not contest the finding that he

voluntarily dismissed his case in order to first exhaust his administrative

remedies. See Aplt’s Br. at 2, 6.

             Under Rule 41(a)(1)(i), a plaintiff has an absolute right to dismiss
      without prejudice and no action is required on the part of the court. The
      [filing of a Rule 41(a)(1)(i) notice] itself closes the file. . . . The effect
      of the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) is to
      leave the parties as though no action had been brought. Once the notice
      of dismissal has been filed, the district court loses jurisdiction over the
      dismissed claims and may not address the merits of such claims or issue
      further orders pertaining to them.

Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003). Therefore, when Mr.

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Deutsch filed his voluntary dismissal, the district court was rendered powerless to

issue his requested injunctive relief. However, a voluntary dismissal constitutes a

dismissal without prejudice, see F ED . R. C IV . P. 41(a)(1), and if Mr. Deustch has

exhausted his administrative remedies as he claims, he may refile his Bivens

action in the district court. See Steele v. Federal Bureau of Prisons, 355 F.3d

1204, 1214 (10th Cir. 2003) (applying the PLRA’s exhaustion requirement to

Bivens claims); Jackson, 254 F.3d at 270-71 (“Because the prisoners failed to

exhaust their administrative remedies, the district court should have dismissed the

complaint without prejudice, allowing the prisoners to refile once they have

completed the [prison] grievance procedures.”).

      Because Mr. Deustch had voluntarily dismissed his claims, the district court

did not abuse its discretion in denying his Rule 59(e) motion. Because the action

has been properly dismissed, we are unable to reach the merits of Mr. Deutsch’s

issues on appeal. Accordingly, we DISMISS this matter.



                                        Entered for the Court,

                                        Robert H. Henry
                                        Circuit Judge




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