United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
Owens brings claims under 42 U.S.C. § 1983 against John
Doe, Daniel White the former Superintendent of Monroe
Corrections Complex (MCC), Christopher Bowman the Associate
Superintendent of Washington State Penitentiary (WSP), Walla
Walla, and Timothy Thrasher a Department of Corrections
Manager. See Dkt. 5. Mr. Owens claims John Doe
violated his privacy, conducted an unreasonable search, and
imposed on him cruel and unusual punishment by placing a
secret hidden camera in his cell that took videos of him. He
further alleges defendants White, Bowman, and Thrasher,
failed to adequately investigate the matter, failed to
sufficiently respond to grievances Mr. Owens lodged, and are
somehow responsible for the hidden camera in his cell.
March 9, 2018, defendants moved for summary judgment. Dkt.
29. In response, Mr. Owens filed a motion for voluntary
dismissal without prejudice. Dkt. 33. After careful review,
the undersigned recommends Mr. Owens' motion for
voluntary dismissal be granted. If the Court concludes the
motion for voluntary dismissal should be denied, and that the
merits of Defendants' Motion for Summary Judgment should
be determined, it is recommended summary judgment be granted
and the case be dismissed with prejudice.
Owens' complaint alleges “in November and December
2015, in the intensive management unit of Monroe Corrections
Complex, John Doe placed my cell under surveillance in secret
through use of hidden cameras.” Dkt 5 at 3. He contends
the secret camera violated his right to privacy, constitutes
an unreasonable search, and constitutes cruel and unusual
punishment. Id. at 3-4. The complaint also alleges
defendants White, Bowman, and Thrasher are liable for
“Failure to Act.” Id. at 4. In specific,
Mr. Owens alleges Mr. White “through deliberate
indifference allowed this to continue in failing to act,
despite his position of authority. He never conducted any
meaningful investigation into the matter.” Id.
Mr. Owens also alleges he sent letters and grievances to Mr.
Bowman “but his refusal to act has allowed the
frequency and volume of the violations to increase.”
Id. at 5. And finally, Mr. Owens alleges Mr.
Thrasher who responded to a grievance “failed to act
which symbolizes his implicit authorization.”
ASSERTED BY DEFENDANTS
acknowledge Mr. Owens was incarcerated in the Intensive
Management Unit (IMU) at the MCC during the time period in
which the alleged violations occurred. Dkt. 29. In January
2016, Mr. Owens submitted a “level I” grievance
claiming he was “watched and recorded on camera while
INSIDE my cell, ” . . . and that the “cameras are
concealed.” Dkt. 30 (Declaration of White Exhibit 1/1).
In response, a Department of Corrections (DOC) grievance
coordinator responded indicating “the cameras are not
pointed directly into your cell. You do have privacy while in
your cell.” Id. Mr. Owens appealed the
grievance. Defendant White responded stating:
I have reviewed the level I investigation and concur with the
findings. The cameras on the unit are for safety and
security. Since they are considered a security device the
specific capabilities of our cameras are not made available
to offenders. The purpose of the cameras is to monitor
offenders while they are outside of their cell. All cameras
are mounted in plain view. There are no cameras mounted
inside your cell.
Id. at Exhibit 1/3. Mr. White also avers he has no
knowledge or reason to believe that there exists any video
like the one described by Mr. Owens' grievance and that
“if such a video had existed I would have been aware of
it given my position at MCC.” Dkt. 30 at 2. Mr. Owens
appealed Defendant White's Level II decision and
Defendant Thrasher and Scott Russell (non-defendant) oncurred
with the previous DOC grievance responses. Id. at
addition to submitting grievances about a secret camera in
his cell, Mr. Owens also sent several letters to other DOC
employees. Defendant Bowman states that on January 18, 2017,
he responded to a letter Mr. Owens mailed to WSP
Superintendent Donald Holbrook, and informed Mr. Owens that
“the inside of the cells do not have any recording
equipment; therefore they are not recorded and there is no
video of the nature you suggest.” Dkt. 31, Exhibit 1/2.
On January 30, 2017, Mr. Bowman responded to another letter
Mr. Owens sent about videos taken from inside his cell. Mr.
Bowman stated “Again, we have no such video at
WSP.” Id., Exhibit 2/2. On March 29, 2017, Mr.
Bowman again responded to a letter Mr. Owens sent about
obtaining videos taken by a secret camera in his cell. Mr.
Bowman indicated that as noted in his January 30, 2017,
letter, Mr. Owens should “follow the public disclosure
process outlined in DOC Policy 280.510 Public Disclosure of
Records.” Mr. Bowman noted Mr. Owen's struggles
with obtaining public records but ended the letter indicating
public disclosure is a resource option that is available and
as such “I deem the subject closed and will not respond
to any further correspondence.” Id. Exhibit
Interplay Between Voluntary Dismissal and Summary
response to defendant's summary judgment motion, Mr.
Owens filed a “motion to withdraw/voluntarily
dismiss.” Dkt. 33. After a motion for summary judgment
is filed, and absent a stipulation by all parties who have
appeared, “an action may be dismissed at the
plaintiff's request, only by court order, on terms that
the court considers proper.” Fed.R.Civ.P. 41(a)(2). A
motion for voluntary dismissal under Rule 41(a)(2) “is
addressed to the sound discretion of the District Court, and
its order will not be reversed unless [it] has abused its
discretion.” Hamilton v. Firestone Tire &
Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982).
Nevertheless, “[a] district court should grant a motion
for voluntary dismissal under Rule 41(a)(2) unless a
defendant can show that it will suffer some plain legal
prejudice as a result.” Smith v. Lenches, 263
F.3d 972, 975 (9th Cir. 2001) (footnote omitted); see
also Westlands Water Dist. v. United States, 100 F.3d
94, 96 (9th Cir. 1996).
court must therefore determine whether defendants will suffer
plain legal prejudice if the case is voluntarily dismissed.
Legal prejudice is “prejudice to some legal interest,
some legal claim, some legal argument.” Id. at
97. Plain legal prejudice does not result simply because a
suit remains unresolved, id., the defendant faces
the prospect of a second lawsuit, or the plaintiff stands to
gain some tactical advantage, Hamilton, 679 F.2d at
145. The Ninth Circuit has specified that neither the fact
that a defendant has incurred substantial expense, nor ...