Townsel v. Gahan et al

Filing 43

ORDER by Judge Richard A Jones. The court ADOPTS the R&R (Dkt. # 39 ), grants Mr. Townsel's request for voluntary dismissal, and directs the court to DISMISS this action without prejudice. (CL) (cc: pltf)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JERRY UVARIUS TOWNSEL,
Plaintiff,

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CASE NO. C12-1165RAJ
v.
ORDER
TOMAS GAHAN, et al.,
Defendants.

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This matter comes before the court on a Report and Recommendation (“R&R”)

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from the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. # 39. For

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the reasons stated herein, the court ADOPTS the R&R, thereby granting Plaintiff’s

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request for voluntary dismissal. The court directs the clerk to dismiss this action without

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prejudice.

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Plaintiff Jerry Townsel, who is incarcerated and appearing pro se, filed this suit

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alleging that prosecutors in the King County Prosecutor’s office violated his rights in

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obtaining and releasing his medical records from the King County Jail. He also sued one

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Jail employee.

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Defendants answered the complaint and filed a summary judgment motion in

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which they contended that collateral estoppel, prosecutorial immunity, qualified

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immunity, and the doctrine expressed in Heck v. Humphrey, 512 U.S. 477 (1994)

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mandated judgment as a matter of law on all of his claims. Plaintiff responded to the

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ORDER – 1

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summary judgment motion. Judge Tsuchida stayed discovery pending his decision on the

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motion.

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On December 4, Mr. Townsel asked the court to voluntarily dismiss his case

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without prejudice. He asked to dismiss the case “in the interest of justice and economy of

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judicial resources.” Dkt. # 36.

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Defendants responded by demanding that Mr. Townsel (who is proceeding in

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forma pauperis in this case) either pay more than $2,000 in attorney fees or agree to

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dismissal of his case with prejudice.

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In the R&R, Judge Tsuchida recommends that the court reject Defendants’ request
for attorney fees and grant the voluntary dismissal without prejudice.

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Mr. Townsel received Defendants’ demand for attorney fees before he received

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the R&R. He filed a motion for extension of time to respond to the demand and asked

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the court to appoint counsel. He asks that the court consider appointment of counsel

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before his request for voluntary dismissal, but does not retract his request for voluntary

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dismissal.

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Mr. Townsel has no right to court-appointed counsel in this civil case, and the

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court declines to exercise its discretion to appoint counsel. For at least the reasons stated

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in Defendants’ summary judgment motion, it does not appear to the court that Mr.

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Townsel has a viable claim.

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In a case where a defendant has filed an answer or a motion for summary

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judgment and does not consent to voluntary dismissal, the court can condition the

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dismissal on “terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Here,

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Defendants’ request for attorney fees or a dismissal with prejudice are not proper terms.

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The court recognizes the time that Defendants’ counsel invested in defending against Mr.

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Townsel’s claims. If the court grants Mr. Townsel’s request for dismissal without

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prejudice, one of two things will happen. Mr. Townsel might choose not to bring his

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ORDER – 2

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claim again, in which case the outcome will be no different than if Defendants had

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prevailed on their summary judgment motion. If, on the other hand, Mr. Townsel refiles

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his suit, nothing will prevent Defendants from relying on the same summary judgment

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motion they filed in this case. In either event, Defendants have suffered no prejudice.

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The court accordingly ADOPTS the R&R (Dkt. # 39), grants Mr. Townsel’s

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request for voluntary dismissal, and directs the court to DISMISS this action without

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prejudice. The clerk shall give notice of this order to Judge Tsuchida.

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DATED this 3rd day of January, 2013.

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A

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The Honorable Richard A. Jones
United States District Court Judge

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ORDER – 3