Cazares v. Yates
Filing
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FINDINGS and RECOMMENDATION Recommending to Grant Plaintiff's Request to Voluntarily Dismiss the Action With Prejudice 44 , signed by Magistrate Judge Stanley A. Boone on 11/18/14: 30-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SIMON CAZARES,
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Plaintiff,
v.
NASSIF TAREK, et al.,
Defendants.
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Case No.: 1:08-cv-00232-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING TO GRANT PLAINTIFF’S
REQUEST TO VOLUNTARILY DISMISS THE
ACTION WITH PREJUDICE
[ECF No. 44]
Plaintiff Simon Cazares is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
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I.
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BACKGROUND
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This action is proceeding against Defendants Dr. Tarek Nassif and Dr. D. Coleman for
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deliberate indifference of a serious medical need relating to the treatment of Plaintiff’s wrist injury.
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Now pending before the Court is Defendant Coleman’s motion for summary judgment, filed
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September 22, 2014. Instead of filing an opposition, Plaintiff filed a request to voluntarily dismiss the
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action, with prejudice, on October 6, 2014. Defendant Coleman has not opposed Plaintiff’s motion for
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voluntary dismissal. Local Rule 230(l).
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Defendant Nassif previously filed a motion for summary judgment on March 27, 2014.1
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Plaintiff did not file an opposition. On May 21, 2014, the undersigned issued Findings and
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Recommendations recommending to grant Defendant Nassif’s motion for summary judgment. On
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September 4, 2014, the Findings and Recommendations were adopted in full and judgment was
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entered in favor of Defendant Nassif.
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II.
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DISCUSSION
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Under Rule 41, a Plaintiff may voluntarily dismiss without a court order by filing a notice of
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dismissal before the defendant serves an answer or a motion for summary judgment. Fed. R. Civ. P.
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41(a)(1)(A)(i). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound
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discretion of the District Court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th
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Cir. 1982). Under Rule 41(a)(2), there are three separate determinations for the court to make: (1)
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whether to allow dismissal; (2) whether the dismissal should be with or without prejudice; and (3)
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what terms and conditions, if any, should be imposed. Williams v. Peralta Community College Dist.,
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227 F.R.D. 538, 539 (N.D. Cal. 2005). In this case, the Court finds it necessary to address only the
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first two considerations.
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A court should grant a motion for voluntary dismissal unless the defendant can show that he
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will suffer legal prejudice as a result. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Legal
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prejudice means “prejudice to some legal interest, some legal claim, some legal argument. Westlands
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Water Dist. v. United States, 100 F.3d 972, 975 (9th Cir. 2001). Legal prejudice does not result
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because the dispute remains unresolved, there is a threat of future litigation, or a plaintiff may gain a
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tactical advantage by the dismissal. Smith, 263 F.3d at 976.
Because Defendant Coleman has answered the complaint and filed a motion for summary
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judgment, a court order is necessary for Plaintiff to voluntarily dismiss this action at this point in time.
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Id. The Court finds that Defendant Coleman, the only remaining defendant in this action, would not
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suffer legal prejudice if the Court grants Plaintiff’s motion for voluntary dismissal, with prejudice,
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On November 12, 2013, Defendant D. Coleman filed an answer to the complaint. (ECF No. 31.)
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versus a grant of summary judgment in his favor. Either a dismissal with prejudice or a grant of
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summary judgment in his favor has the same legal effect as to Defendant Coleman. In either situation,
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Plaintiff may not re-litigate the claim raised in the instant action against Defendant Coleman.
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Accordingly, the Court recommends that Plaintiff’s motion to voluntarily dismiss the action, with
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prejudice, and enter be GRANTED.
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III.
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RECOMMENDATION
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Based on the foregoing,
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IT IS HEREBY RECOMMENDED that:
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Plaintiff’s motion to voluntarily dismiss this action with prejudice be GRANTED; and
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The Clerk of Court be directed to enter judgment.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned AObjections to Magistrate Judge=s Findings and
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Recommendations.@ The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991).
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IT IS SO ORDERED.
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Dated:
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November 18, 2014
UNITED STATES MAGISTRATE JUDGE
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