Bradford v. Khamooshian et al

Filing 172

REPORT AND RECOMMENDATION for Order: Granting Plaintiff's Motion for Voluntarily Dismiss Defendant Voon, and Denying as Moot Defendant Voong's Motion to Dismiss Plaintiff's Third Amended Complaint (ECF 164 , 171 ). No later than Fe bruary 14, 2020, any party to this action may file written objections and serve a copy on all parties. Any Reply to the Objections shall be filed with the Court and served on all parties no later than February 28, 2020. Signed by Magistrate Judge Allison H. Goddard on 1/31/20.(All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RAYMOND ALFORD BRADFORD,

Case No.: 3:17-cv-2053-BAS-AHG

Plaintiff,

12
13

v.

14

REPORT AND
RECOMMENDATION FOR ORDER:

K. KHAMOOSHIAN, et al.,

15

(1) GRANTING PLAINTIFF’S
MOTION TO VOLUNTARILY
DISMISS DEFENDANT VOONG, and

Defendants.

16
17

(2) DENYING AS MOOT
DEFENDANT VOONG’S MOTION
TO DISMISS PLAINTIFF’S THIRD
AMENDED COMPLAINT

18
19
20

[ECF Nos. 164, 171]

21
22
23
24
25
26
27
28

Before the Court are two motions: (1) Plaintiff Raymond Alford Bradford’s
(“Plaintiff”) Motion to Voluntarily Dismiss Defendant M. Voong (“Defendant Voong”)
Without Prejudice and (2) Defendant Voong’s Motion to Dismiss Plaintiff’s Third
Amended Complaint. ECF Nos. 164, 171. For the reasons set forth below, the Court
RECOMMENDS that the District Judge GRANT Plaintiff’s motion and consequently
DENY AS MOOT Defendant Voong’s motion.

1
3:17-cv-2053-BAS-AHG

1

I.

BACKGROUND

2

Plaintiff, a prisoner proceeding pro se and in forma pauperis, filed this civil rights

3

action under 42 U.S.C. § 1983 claiming that multiple defendants violated several of his

4

constitutional rights while he was incarcerated at the Richard J. Donovan Correctional

5

Facility in San Diego, California. ECF No. 160. In his third amended complaint, Plaintiff

6

alleged that Defendants Zhang, Khamooshian, Freund, Merritt, and Voong violated his

7

Eighth Amendment Rights and denied him access to courts. Id. at 3. After sua sponte

8

screening Plaintiff’s third amended complaint pursuant to 28 U.S.C. § 1915(e)(2), the

9

Court dismissed Defendants Zhang, Khamooshian, Freund, and Merritt with prejudice, and

10

permitted Plaintiff’s case to proceed against Defendant Voong. ECF No. 162 at 6.

11

Defendant Voong subsequently filed a motion to dismiss the complaint for failure to state

12

a claim. ECF No. 164. Though Plaintiff initially opposed Defendant Voong’s motion to

13

dismiss (see ECF No. 168), he thereafter filed a motion to voluntarily dismiss Defendant

14

Voong, so that he could seek appellate review of the Court’s earlier order dismissing the

15

other defendants. ECF No. 171.

16

II.

17

PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS DEFENDANT
VOONG WITHOUT PREJUDICE

18

A plaintiff is entitled to voluntary dismissal of a defendant under Federal Rule of

19

Civil Procedure 41(a) if he seeks dismissal “before the opposing party serves either an

20

answer or a motion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). The resulting

21

dismissal is without prejudice. FED. R. CIV. P. 41(a)(1)(B).

22

Here, Defendant Voong has not answered the complaint nor filed a motion for

23

summary judgment. See ECF No. 164 (filing a motion to dismiss in lieu of an answer).

24

Accordingly, under Rule 41(a)(1), Plaintiff has “an absolute right to voluntarily dismiss his

25

action.” Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997); see also Romoland

26

Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008) (stating

27

that Rule 41 “allows plaintiffs voluntarily to dismiss some or all of their claims against

28

some or all defendants”). The present motion was not required to effectuate the dismissal;
2
3:17-cv-2053-BAS-AHG

1

mere notice of dismissal would have sufficed. See FED. R. CIV. P. 41(a)(1)(A) (requiring a

2

notice or stipulation, not a motion); Jessup v. Nationstar Mortg., LLC, No. 16-cv-503-

3

BLW, 2017 WL 1943951, at *1 (D. Idaho May 10, 2017) (granting plaintiff’s motion to

4

voluntarily dismiss, while noting that plaintiff’s motion was unnecessary because plaintiff

5

had an absolute right to voluntarily dismiss the action via “mere notice” because defendant

6

had filed a 12(b)(6) motion to dismiss in lieu of an answer).

7

Therefore, the Court RECOMMENDS that Plaintiff’s motion to voluntarily dismiss

8

Defendant Voong be GRANTED without prejudice. See Jessup, 2017 WL 1943951, at *1.

9

III.

10

DEFENDANT VOONG’S MOTION TO DISMISS PLAINTIFF’S THIRD
AMENDED COMPLAINT

11

Defendant Voong moved to dismiss Plaintiff’s third amended complaint, contending

12

that Plaintiff does not adequately state claims against Defendant Voong. ECF No. 164 at 1.

13

More specifically, Defendant Voong argues that the complaint does not contain any

14

allegations of personal liability and likewise fails to sufficiently plead supervisory liability,

15

and also argues that “merely being a reviewer of an inmate grievance does not give raise

16

to a § 1983 claim.” Id. at 3–5.

17

Though Plaintiff initially opposed the motion, as a result of Plaintiff’s subsequent

18

request that Defendant Voong be dismissed, the Court will not address the merits of

19

Defendant Voong’s motion. Consequently, the Court RECOMMENDS that Defendant

20

Voong’s motion to dismiss be DENIED AS MOOT without prejudice.

21

IV.

CONCLUSION AND RECOMMENDATION

22

This report and recommendation is submitted to the United States District Judge

23

assigned to this case pursuant to 28 U.S.C. § 636(b)(1). For the reasons discussed above,

24

IT IS HEREBY RECOMMENDED that the District Judge issue an Order:

25

(1)

adopting this Report and Recommendation;

26

(2)

GRANTING Plaintiff’s Motion to Voluntarily Dismiss Defendant Voong

27

without prejudice (ECF No. 171); and

28
3
3:17-cv-2053-BAS-AHG

1
2

(3)

DENYING AS MOOT without prejudice Defendant Voong’s Motion to
Dismiss Plaintiff’s Third Amended Complaint (ECF No. 164).

3

IT IS ORDERED that no later than February 14, 2020, any party to this action

4

may file written objections and serve a copy on all parties. The document should be

5

captioned “Objections to Report and Recommendation.” The parties are advised that

6

failure to file objections within the specified time may waive the right to raise those

7

objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

8

Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

9
10

IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with
the Court and served on all parties no later than February 28, 2020.

11
12
13

IT IS SO ORDERED.
Dated: January 31, 2020

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
3:17-cv-2053-BAS-AHG