Dixon v. Beard et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 9/1/2016 regarding 3 MOTION to Dismiss and 6 MOTION for Voluntary Dismissal. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/19/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL STEVE DIXON,

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Plaintiff,

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v.
JEFFREY BEARD, et al.,

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Defendants.

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Case No.: 1:16-cv-00133-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS (ECF No. 3) AND PLAINTIFF’S
MOTION FOR VOLUNTARY DISMISSAL
(ECF No. 6)
FOURTEEN (14) DAY DEADLINE

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FINDINGS AND RECOMMENDATIONS

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I.

Background
On October 6, 2015, Plaintiff Daniel Steve Dixon (“Plaintiff”), a state prisoner

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proceeding pro se, filed a petition for writ of mandate and declaratory relief (“Petition”) in

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Tuolumne County Superior Court. (ECF No. 1, pp. 5-84.) Plaintiff named a number of

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defendants in his Petition, including Defendant John C. Kelso, in his capacity as Receiver for the

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California state prison medical care system, pursuant to Plata v. Schwarzenegger, et al., C01–

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1351–TEH (N.D. Cal. Jan. 23, 2008). (Id. at pp. 11-12, ¶ 8 & n.2.) Plaintiff’s Petition generally

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alleges that his request for soft-sole shoes due to medical issues is being wrongfully denied.

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On January 28, 2016, Defendant Kelso removed this action to this federal district court

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by filing a notice of removal. (ECF No. 1, pp. 1-2.) Defendant Kelso asserted in the notice of

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removal that he, as the Receiver appointed under Plata, may remove this civil action pursuant to
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28 U.S.C. § 1442(a)(1), (3), because the claims in the Petition are directly related to the exercise

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of the Receiver’s federal court-ordered authority and duties. (Id.) Shortly thereafter, on February

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3, 2016, Defendant Kelso moved for an order dismissing Plaintiff’s Petition without leave to

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amend for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the

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alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 3.)

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Plaintiff did not file an opposition to Defendant Kelso’s motion. Instead, on February 25,

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2016, Plaintiff filed a motion for voluntary dismissal of his action, without prejudice, under

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Federal Rule of Civil Procedure 41(a), with a supporting declaration. (ECF No. 6.) On March 1,

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2016, Defendant Kelso filed a reply in support of his motion to dismiss and/or for summary

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judgment, noting Plaintiff did not file an opposition to his motion, but acknowledging that

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Plaintiff has requested a voluntary dismissal of this action. (ECF No. 7.)
On March 9, 2016, Plaintiff filed a response to Defendant Kelso’s reply, stating that his

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motion for voluntary dismissal was his timely response to Defendant Kelso’s motion. He further

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asserted that he provided sufficient legal support for his request for a voluntary dismissal. (ECF

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No. 9.)
The Court finds the time for responses and replies to the parties’ motions have expired,

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and the motions are deemed submitted. Local Rule 230(l).

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II.

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Plaintiff’s Motion for Voluntary Dismissal
The Court will first address Plaintiff’s motion for a voluntary dismissal of this action,

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without prejudice, pursuant to Federal Rule of Civil Procedure 41(a), because the determination

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of that motion affects whether the Court may consider the merits of Plaintiff’s Petition, and

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specifically Defendant Kelso’s motion to dismiss that Petition. See Duke Energy Trading &

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Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001) (“Once the notice of dismissal has

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been filed, the district court loses jurisdiction over the dismissed claims and may not address the

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merits of such claims or issue further orders pertaining to them.”).

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“[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his

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action prior to service by the defendant of an answer or a motion for summary judgment.”

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Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999)
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(quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no

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court order is required, the parties are left as though no action had been brought, the defendant

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can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078.

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Under Federal Rule of Civil Procedure 41(a)(2), a plaintiff may request dismissal after an

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opposing party has served a motion for summary judgment “only by court order, on terms that

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the court considers proper.” Fed. R. Civ. P. 41(a)(2). “A motion for voluntary dismissal pursuant

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to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that it

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will suffer some plain legal prejudice as a result of the dismissal.” Hepp v. Conoco, Inc., 97 F.

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App’x 124, 125 (9th Cir. 2004) (citations omitted). “Legal prejudice is prejudice to ‘some legal

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interest, some legal claim, [or] some legal argument.’” Maxum Indem. Ins. Co. v. A-1 All Am.

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Roofing Co., 299 F. App’x 664, 666 (9th Cir. 2008) (quoting Westlands Water Dist. V. United

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States, 100 F.3d 94, 97 (9th Cir. 1996)).

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In this case, it is not entirely clear which provision of Federal Rule of Civil Procedure

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41(a) that Plaintiff relies upon in seeking a voluntary dismissal. Plaintiff’s motion cites to Rule

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41(a)(2). (ECF No. 6, p. 1.) His arguments in the motion and response briefs, however, rely on

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Black v. United States, No. CV-08-102-RHW, 2009 WL 192469 (E.D. Wash. Jan. 27, 2009). In

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Black, the court found that the plaintiff was permitted to voluntarily dismiss his action, without

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prejudice, pursuant to Rule 41(a)(1).

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The facts of the Black case are similar to the facts in this matter. In Black, the defendants

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filed a motion to dismiss, styled as a motion for summary judgement in the alternative. The

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plaintiff asked the court to dismiss the case without prejudice pursuant to Rule 41(a)(1), because

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the defendants had not filed any answer. The defendants objected, arguing that due to their filing

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of a motion to dismiss or for summary judgment in the alternative, Rule 41(a)(2) applied.

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The court in Black noted that despite the defendants’ styling their motion as a motion for

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summary judgment in the alternative, they did not provide a statement of facts as required for a

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proper Rule 56 motion under the local rules. Thus, the defendants’ motion was properly

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characterized as a motion to dismiss. Further, the Black court recognized that under Ninth Circuit

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precedent, the filing of a motion to dismiss does not trigger Rule 41(a)(2). Id. at *1. See also
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Swedberg v. Marotzke, 339 F.3d 1139, 1146 (9th Cir. 2003) (“A Rule 12(b)(6) motion to dismiss

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supported by extraneous materials cannot be regarded as one for summary judgment until the

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district court acts to convert the motion by indicating, preferably by an explicit ruling, that it will

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not exclude those materials from its consideration. Until the district court has so acted, a plaintiff

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is free to file a proper notice of dismissal pursuant to Rule 41(a)(1).”).
In this case, Defendant Kelso’s motion asserts that Plaintiff’s Petition fails to state a

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claim for relief against him. Defendant Kelso states that Plaintiff alleges a violation of California

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Penal Code (“CPC”) § 2625(d) for depriving him of his soft-soled shoes. Defendant Kelso

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argues that the Petition admits on its face that Plaintiff’s primary care physician, several

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department physicians, and the prison medical personnel and administration, have determined

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the shoes were not medically necessary, undermining this claim. (ECF No. 3-1, pp. 10-11.) (See

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Petition, ECF No. 1, ¶¶ 26-35). Defendant Kelso further argues that there is no private right of

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action under CPC § 2625(d) anyway. (Id. at 11.) Defendant Kelso next argues that Plaintiff

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cannot state a claim against him for any violation of the correctional appeals procedures due to

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dissatisfaction with the appeals process, nor can he state a claim for any violation of prison

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administrative statutes based merely on the fact that the Receiver was copied on correspondence

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concerning Plaintiff’s appeal. (Id. at 12-13.) Finally, Defendant Kelso argues that Plaintiff has no

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cognizable claim for declaratory or injunctive relief, as Plaintiff may not dictate his medical

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course of treatment simply because he disagrees with the medical personnel’s decisions, and

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because his request for injunctive relief is precluded by Plata. (Id. at 13-15.)

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Defendant Kelso’s arguments in support of summary judgment are limited to the Court’s

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consideration of the exhibits Plaintiff attached to and referred to in the Petition. Defendant Kelso

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argues that these exhibits are consistent with the allegations of the Petition, that the medical staff

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and officials determined Plaintiff’s soft-soled shoes were not medically required. (ECF No. 3-1,

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pp. 10-11.) Defendant Kelso has not submitted any extrinsic evidence in support of summary

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judgment, nor has he filed a statement of undisputed facts in support of a motion for summary

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judgment, as required by the Local Rules. Local Rule 260(a).

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Defendant Kelso’s motion is properly characterized solely as a motion to dismiss under

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Rule 12(b)(6). When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers

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evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56

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motion for summary judgment, and it must give the nonmoving party an opportunity to respond.

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Fed. R. Civ. P. 12(d); Parrino v. FHP, Inc., 146 F.3d 699, 706 n. 4 (9th Cir. 1998). A court may,

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however, consider exhibits attached to the complaint, Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and documents incorporated by reference

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into the complaint, Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.

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2002), without converting the motion to dismiss into a motion for summary judgment. Thus,

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since Defendant Kelso only relies on the Petition and the attached exhibits referred to in the

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Petition in his motion, the motion would not be converted into any motion for summary

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judgment under Rule 56.

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Based on the foregoing, Rule 41(a)(2) has not been triggered in this case by Defendant

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Kelso’s motion, and Plaintiff is entitled to dismiss this action pursuant to Rule 41(a)(1)(A)(i),

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which he accomplished by filing his request for voluntary dismissal on February 25, 2016. For

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these reasons, the Court shall not consider the merits of Defendant Kelso’s motion to dismiss,

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which has been rendered moot by Plaintiff’s voluntary dismissal of this action.

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III.

Conclusion and Recommendations

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For the reasons set forth above, the Court HEREBY RECOMMENDS that:

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1.

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Plaintiff’s motion to voluntarily dismiss this action, without prejudice, (ECF No.
6), be GRANTED; and
Defendant’s motion to dismiss (ECF No. 3) be DENIED, as moot.

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2.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 1, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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