Smith v. Deputy Marshall et al

Filing 54

ORDER: Plaintiff's Motion 47 to Voluntarily Dismiss Without Prejudice is DENIED. Plaintiff's response to defendants' motion for summary judgment is due by August 19, 2012. IT IS SO ORDERED. Signed on 7/31/2012 by Magistrate Judge Paul Papak. (gw)

I

I

I

IN THE UNITED STATES

DISTRI~T

COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
WILLIAM M. SMITH,
3: 12-cv-00122-PK
Plaintiff,
v.

DEPUTY MARSHALL, et al.,

ORDER

Defendants.
PAPAK, Magistrate Judge.
Plaintiff in this prisoner civil rights action filed a motion
to voluntarily dismiss his complaint without prejudice and seeks an
order from the Court "tolling the statute of limitations for a
period of 180 days,

so that

[he] may file his amended complaint

without compromising potential new claims which were accidently
omitted from

[his]

original complaint."

Voluntarily Dismiss Claims [47] at 1.

Plaintiff's Motion to

Defendants oppose dismissal

of this action without prejudice on the basis that they filed a
timely motion for summary judgment, fully briefing the legal issues

1 - ORDER

in this case,

and that they would be prejudiced by plaintiff's

suggested course of action.
Plaintiff

indicates

Defendant's Response [53] at 1-2.

that

given

his

limited

access

to

the

prison library (5 to 7 hours per week) he does not have sufficient
time to work on both his direct criminal appeal and this civil
rights action. 1

Affidavit of William M. Smith [48]

at 2.

It is

clear from plaintiff's motion and affidavit that intends only to
delay the litigation of his claims against defendants.
A

plaintiff

is

entitled

to

voluntary

dismissal

without

prejudice before the opposing party serves either an answer or a
motion for summary judgment.

Fed.R.Civ.P. 41 (a) (1).

However, once

an answer or motion for summary judgment has been served, an action
may

be

dismissed

at

Fed.R.Civ.P. 41(a) (2).

plaintiff's

request

only

by

court

order.

The decision to dismiss under this rule is

left to the sound discretion of the district court and it will not
be disturbed on appeal absent an abuse of discretion.

Stevedoring

Services of America v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th
Cir. 1987).
Here, defendants filed a timely motion for summary judgment on
July 3,

2012.

Granting plaintiff's voluntary motion to dismiss

without prejudice in order to extend the time he has to research
the issues in his case and add new claims is unwarranted and would

1

The Court notes plaintiff states he is represented by an
attorney on direct appeal.
2 - ORDER

prejudice the defendants.
denied.

Accordingly, plaintiff's Motion [47] is

Plaintiff is advised that his response to defendants'

motion for summary judgment is due by August 19, 2012, but that he
may file a motion for extension of time if necessary.
With regard to Plaintiff's suggestion that he will move the
Court for leave to file an amended complaint, he is further advised
as follows.

Federal Rule of Civil Procedure 15(a), which governs

requests for leave to amend pleadings, provides that "leave shall
be freely given when justice so requires." Fed. R. Civ. P. 15(a).
Leave to amend should be provided unless the opposing party makes
a showing of undue delay, bad faith or dilatory motive, futility of
amendment, or prejudice. See Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227 ,

9 L.Ed.2d 222

(1962); Ascon Props.,

Inc. v. Mobil Oil

Co., 866 F.2d 1149, 1160 (9th Cir.1989) (emphasis added).
CONCLUSION

Based on the foregoing, Plaintiff's Motion [47] to Voluntarily
Dismiss

Without

Prejudice

is

DENIED.

Plaintiff's

response

to

defendants' motion for summary judgment is due by August 19, 2012.
IT IS SO ORDERED.
DATED this

31~ day ~ly,
Paul Papak
United States Magistrate Judge

3 - ORDER