Muhammad v. Arizona Department of Corrections et al

Filing 76

ORDER, the Court's order to show cause filed 7/1/14 shall be deemed satisfied; pursuant to the parties' Stipulation for Partial Dismissal 71 , Counts 2, 3 and 4 of the Second Amended Complaint 25 are dismissed with prejudice; Defendants Lind, Linderman, Ryan and Krause are dismissed with prejudice; Plaintiff's Motion for Preliminary Relief 37 is denied as moot; Plaintiff's Motion for Class Certification 46 is denied as moot. Signed by Senior Judge Stephen M McNamee on 7/30/14. (REW)

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

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8 Riki Rashaad Muhammad,
Plaintiff

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CV-11-1890-PHX-SMM (JFM)
ORDER

vs

11 Arizona Department of Corrections,
et al.,
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Defendants.
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Plaintiff has filed a Second Amended Civil Rights Complaint (Doc. 25), raising

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claims of equal protection, free exercise of religion, and violations of the Religious Land

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Use and Institutionalized Persons Act (“RLUIPA”), and in Count 7 a claim of deliberate

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indifference to Plaintiff’s safety. The Court’s Screening Order dismissed Counts 1, 5,

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and 6. It further directed responses from various combinations of Defendants Ryan,

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Krause, Linderman, and/or (J.) Lind to Counts 2, 3, and 4. A response from Defendant

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Ams to Count 7 was required. (Order 7/25/13, Doc. 29.)

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Defendants Ryan, Linderman, Lind, and Ams appeared, and Ryan, Linderman

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and Lind filed a notice of settlement (Doc. 60). In addition, Defendant Ams has recently

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filed what the Court has construed to be a motion to dismiss for failure to exhaust

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administrative remedies (Doc. 67).

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In the interim, Plaintiff filed a Motion for Preliminary Relief (Doc. 37) seeking

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preliminary relief as to count 3 (religious diet). He has also filed a Motion for Class

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Certification (Doc. 46), seeking his certification as a class representative as to the claims

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in Counts 2, 3, and 4.
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Service on Defendant Krause was originally returned unexecuted, an address for

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service was ordered, and on February 14, 2014, a Waiver of Service was filed, reflecting

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a waiver of service by Defendant Krause. To date, Defendant Krause has not appeared.

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On July 1, 2014, Magistrate Judge Metcalf observed the incomplete settlement,

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pending motions for preliminary relief and class certification, and failure to serve

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Defendant Krause. Deadlines were set for, inter alia, the parties to file a stipulation to

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dismiss, and Plaintiff to show cause why the pending motions should not be denied as

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moot, and Defendant Krause dismissed for failure to effect timely service.

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Stipulation/Motion to Dismiss - On July 8, 2014, Plaintiff and Defendants Lind,

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Linderman, and Ryan filed a Notice of Settlement and Stipulation for Partial Dismissal,

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advising that the parties had “reached a global settlement agreement of all disputed

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claims between them,” and requesting “an order dismissing this action in its entirety and

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as to every defendant except for Defendant Ams.” (Doc. 71.)

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In an Order filed July 17, 2014, Magistrate Judge Metcalf observed that

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Defendant Ams had not joined in the stipulation, construed the stipulation as a motion to

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dismiss pursuant to Rule 41(a)(2) to dismiss with prejudice Counts 2, 3, and 4, and not

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only Defendants Lind, Linderman and Ryan, but also Defendant Krause. The Court set a

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deadline for a response in opposition or a joinder. On July 18, 2014, Defendant Ams

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filed her Joinder (Doc. 74) in the Stipulation for Partial Dismissal.

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With the joinder by Defendant Ams, all appearing parties have joined in a

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stipulation of dismissal.

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voluntary dismissal by Plaintiff pursuant to Rule 41(a)(1)(A)(ii).

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Thus, the Stipulation for Partial Dismissal qualifies for a

Because the Stipulation specified that the dismissal should be with prejudice, the
dismissal may be with prejudice. See Fed. R. Civ. P. 41(a)(1)(B).
Therefore, the Court will dismiss with prejudice Defendants Lind, Linderman,
Ryan and Krause and Counts 2, 3, and 4 pursuant to the stipulation.

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Pending Motions - Plaintiff has failed to show cause why his pending motions

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should not be deemed moot as a result of the claims disposed of in the settlement. The
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time to do so has expired. Accordingly, those motions will be denied as moot.

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Remaining Claims and Parties - This leaves pending Count 7 of the Second

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Amended Complaint against Defendant Ams, and Defendant Ams’ Motion for Judgment

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on the Pleadings/Motion to Dismiss (Doc. 67).

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IT IS THEREFORE ORDERED that the Court’s order to show cause filed July
1, 2014 shall be deemed SATISFIED.

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IT IS FURTHER ORDERED that, pursuant to the parties’ Stipulation for Partial

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Dismissal, filed July 8, 2014 (Doc. 71), that Counts 2, 3 and 4 of the Second Amended

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Complaint (Doc. 25) are DIMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that Defendants Lind, Linderman, Ryan and
Krause are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary Relief,
filed September 26, 2013 (Doc. 37) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Class Certification,
filed November 29, 2013 (Doc. 46) is DENIED as moot.
DATED this 30th day of July, 2014.

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