United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS
CLAIMS AGAINST DEFENDANTS THE STATE AND JUSTIN GASPER WITHOUT
PREJUDICE AND DECLINING TO ADOPT REPORT AND RECOMMENDATION AS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Michael
Palmer's ("Palmer") unopposed motion for
voluntary dismissal of claims against two defendants. Dkt.
94. The Court has considered the pleadings filed in support
of the motion and the remainder of the file and hereby grants
the motion for the reasons stated herein.
initiated this civil rights action pro se on March 30, 2018.
Dkt. 1. Palmer alleges multiple violations related to his
detention at Grays Harbor County Jail while he awaited trial
on criminal charges there in 2017. See Dkt. 1-1.
Palmer also makes allegations related to the conditions of
his confinement. Id. Relevant to the instant motion,
Palmer sued Defendants the State of Washington
("State") and "Nurse Justin" ("Dr.
Gasper") (collectively "Defendants"), as well
as several people and institutions connected to Grays Harbor
March 29, 2019, Judge Christel directed service of
Palmer's amended complaint to Defendants. Dkt. 40.
24, 2019, the State moved to dismiss Palmer's claims with
prejudice. Dkt. 65.
11, 2019, Dr. Gasper moved for summary judgment of dismissal
with prejudice. Dkt. 88. Also on July 11, 2019, Judge
Christel issued a report and recommendation
("R&R") recommending that the Court dismiss
Palmer's claims against the State with
prejudice. Dkt. 91. Accommodating the time limit for
objections pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b), Judge Christel set the R&R for
consideration on this Court's July 26, 2019 calendar.
Id. at 11.
16, 2019, Palmer filed the instant motion requesting that the
Court "dismiss my claims against the State of Washington
and Justin Gasper without prejudice so that they can be
litigated in the proper jurisdiction." Dkt. 94 at 1.
Neither the State nor Dr. Gasper responded.
Rule of Civil Procedure 41 sets forth the circumstances under
which an action may be dismissed. Under Rule 41(a)(1), a
plaintiff may dismiss an action without a court order before
a party serves an answer or a motion for summary judgment.
Fed.R.Civ.P. 41(a)(1). However, Rule 41(a)(2) "allows a
plaintiff, pursuant to an order of the court, and subject to
any terms and conditions the court deems proper, to dismiss
an action without prejudice at any time." Zanowick
v. Baxter Healthcare Corp., 850 F.3d 1090, 1093 (9th
Cir. 2017) (citing Westlands Water DM. v. United
States, 100 F.3d 94, 96(9thCir. 1996)).
case, neither the State nor Dr. Gasper filed an answer.
However, Palmer moved for dismissal without prejudice after
Dr. Gasper moved for summary judgment. Dkts. 88, 94. Thus, a
court order is required for Palmer to dismiss his claims
against Dr. Gasper. Fed.R.Civ.P. 41(a)(1)-(2).
the State, Palmer moved for dismissal without prejudice after
Judge Christel issued the R&R recommending that claims
against the State be dismissed with prejudice. Dkts. 88, 91.
The undersigned has not yet ruled on the R&R. Thus,
Palmer may technically obtain dismissal of those claims
without a court order under Rule 41(a)(1) because the State
filed a motion to dismiss, rather than an answer or a summary
judgment motion. However, given the outstanding R&R and
because Palmer filed a motion as opposed to a notice of
dismissal, the Court will also examine whether voluntary
dismissal of Palmer's claims against the Stale is
appropriate on the merits.
Ninth Circuit, a district court should grant a motion for
voluntary dismissal unless the defendant can show it will
suffer some plain legal prejudice as a result of the
dismissal. Smith v. tenches, 263 F.3d 972, 975 (9th
Cir. 2001) (citing Waller v. Fin. Corp. of Am., 828
F.2d 579, 583 (9th Cir. 1987)); see also Hamilton v.
Firestone Tire & Rubber Co., 679 F.2d 143, 145-46
(9th Cir. 1982). Legal prejudice is "prejudice to some
legal interest, some legal claim, some legal argument."
Zanowick, 850 F.3d at 1093 (citing Westlands
Water Dist., 100 F.3d at 97)).
case, and at this late stage in the litigation, it is likely
that both the State and Dr. Gasper object to dismissal of
Palmer's claims without prejudice. However, neither
Defendant opposed Palmer's motion. While a motion for
voluntary dismissal is left to the sound discretion of the
district court, see Westlands Water Dist., 100 F.3d
at 96, courts should grant dismissal unless the defendant has
shown the existence of at least some plain legal prejudice.
Lenches, 263 F.3d at 975 (citing Waller,
828 F.2d at 583)). Moreover, under local rule, the Court may
consider a failure to respond to a motion as an admission
that the motion has merit. Local Rules W.D. Wash. LCR