Chavez v. Granado

Filing 98

ORDER signed by Senior Judge William B. Shubb on 5/12/2016 LIFTING the stay imposed in this action on 2/25/2016; ADOPTING IN FULL 84 Findings and Recommendations; GRANTING 68 Motion to Dismiss with respect to the remaining First Amendment claims against Defendants Granadoz, Barnett and the remaining Eight Amendment claim against Defendant Barnett; DENYING 68 Motion to Dismiss with respect to the remaining Eight Amendment claim against Defendant Granadoz; ORDERING the plaintiff to inform th e court, within 21 days, whether he wishes to withdraw his 95 Request for Dismissal; CAUTIONING the plaintiff that if he fails to withdraw said request within 21 days, his remaining claim against Defendant Granadoz will be dismissed without prejudice. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CHAVEZ,

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Plaintiff,

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No. 2:11-cv-1015 WBS CKD P

v.

ORDER

GRANADOZ, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 25, 2016, the court stayed this matter pending plaintiff’s interlocutory appeal

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of the magistrate judge’s January 28, 2016 order denying plaintiff’s request for leave to serve

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further discovery requests and request that the magistrate judge vacate the findings and

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recommendations issued January 8, 2016. The Ninth Circuit dismissed plaintiff’s appeal on April

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6, 2016 for lack of jurisdiction and the mandate issued May 3, 2016. Since the appeal has

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concluded, the stay imposed February 25, 2016 will be lifted.
On January 8, 2016, the magistrate judge filed findings and recommendations herein with

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respect to defendants’ February 2, 2015 motion for summary judgment. Defendant Granadoz

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filed objections to the findings and recommendations on January 20, 2016; plaintiff filed

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objections on January 25, 2016.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis. Accordingly, defendants’ motion for summary judgment will be granted in part and

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denied in part as recommended by the magistrate judge with the only claim surviving defendants’

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motion being the claim against defendant Granadoz for a violation of the Eighth Amendment.

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On April 13, 2016, plaintiff filed a motion asking that this matter be dismissed without

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prejudice. While defendants do not stipulate to dismissal without prejudice, they do not oppose

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plaintiff’s motion. Under these circumstances, the court may grant plaintiff’s request for

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dismissal without prejudice on terms the court considers proper. Fed. R. Civ. P. 41(a)(2). The

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court has considerable discretion in deciding whether such a motion should be granted.

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Westlands Water Dist. v. U.S., 100 F.3d 94, 96 (9th Cir. 1996)

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To the extent plaintiff requests that claims which would not survive defendants’ motion

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for summary judgment instead be dismissed without prejudice, plaintiff’s request is not well

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taken. Defendants’ motion for summary judgment was fully briefed, findings and

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recommendations had issued by the magistrate judge thereon, and objections to the findings and

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recommendations were filed well before plaintiff filed his request for dismissal without prejudice.

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Plaintiff’s request with respect to plaintiff’s claims which would not survive summary judgment

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appears to be nothing more than an eleventh hour, bad faith attempt to simply avoid adoption of

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the magistrate judge’s findings and recommendations.

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It is important to note that plaintiff has already commenced a second action in this court,

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2:16-cv-0520 WBS CKD P, where the complaint filed therein is essentially the same as the

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operative complaint in this action. The magistrate judge has already recommended that action be

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dismissed as duplicative of this one. In his objections to those findings and recommendations,

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plaintiff asserts he seeks dismissal of this action and wishes to proceed in the second action so he

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may have a second chance to conduct discovery. Nothing before this court suggests plaintiff did
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not have a full and fair opportunity to conduct discovery in this action before discovery closed

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and nothing suggests there is any good reason to re-open discovery.

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With respect to plaintiff’s claim which survives defendants’ motion for summary

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judgment, the court will grant plaintiff 21 days within which to withdraw his request for

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dismissal. If plaintiff does not withdraw his request, the claim will be dismissed without

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prejudice. If that happens, the same claim presented in 2:16-cv-0520 WBS CKD P would no

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longer be duplicative of a claim presented in this action. However, plaintiff should be mindful

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that the claim could ultimately be dismissed for violation of the applicable statute of limitations.1

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For all the reasons stated above, IT IS HEREBY ORDERED that:

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1. The stay imposed in this action on February 25, 2016 is lifted.

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2. The findings and recommendations filed January 8, 2016 (ECF No. 84), are adopted in

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full.
3. Defendants’ motion for summary judgment (ECF No. 68) is granted in part and denied

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in part as follows:

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A. Granted with respect to plaintiff’s remaining claims arising under the First

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Amendment;

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B. Granted with respect to plaintiff’s remaining Eighth Amendment claim against

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defendant Barnett; and

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C. Denied with respect to plaintiff’s remaining Eighth Amendment claim against

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defendant Granadoz.

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4. Within 21 days from the date of this order, plaintiff shall inform the court whether he

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wishes to withdraw his April 13, 2016 request for dismissal. If plaintiff does not withdraw that

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The limitations period applicable to § 1983 claims is two years. Maldonado v. Harris, 370 F.3d
945, 955 (9th Cir. 2004). Further, for prisoners incarcerated on a sentence of less than life
imprisonment, the limitations period is tolled for two years. Jones v. Blanas, 393 F.3d 918, 92728 (9th Cir. 2004).
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request within 21 days, plaintiff’s remaining claim against defendant Granadoz will be dismissed

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without prejudice.

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Dated: May 12, 2016

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chav1015.803

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