Malone et al v. Strong

Filing 64

ORDER signed by Magistrate Judge David W. Christel; adding Richard Roy Scott as a Plaintiff to Malone v Strong, 3:16-cv-05284-RBL-DWC; and Granting Plaintiff's Motions 56 to Bifurcate and 57 to Lift Stay in case 3:16-cv-05785-RBL-DWC. The Court anticipates Mr. Arbenz will enter an appearance on behalf of Plaintiff in the Related Case (Malone v Strong) on or before July 28, 2017. (GMR- cc: C. Arbenz via NEF in Malone v Strong; pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICHARD ROY SCOTT,
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Plaintiff,
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CASE NO. 3:16-CV-05785-RBL-DWC
ORDER

v.
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VAN HOOK,
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Defendant.
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The District Court referred this 42 U.S.C. § 1983 action to United States Magistrate

15 Judge David W. Christel. Currently before the Court are Plaintiff Richard Roy Scott’s “FRCP 41
16 Notice of Withdrawal of Contaminated Water Issue Only” (“Motion to Bifurcate”) and Motion
17 to Lift Stay. Dkt. 56, 57. After review of the pending Motions and relevant record, the Court
18 grants Plaintiff’s Motion to Bifurcate (Dkt. 56) and directs the Clerk of Court to add Richard
19 Roy Scott as a Plaintiff in Malone v. Strong, 3:16-cv-5284-RBL-DWC. The Court also grants
20 Plaintiff’s Motion to Lift Stay (Dkt 57).
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I.

Motion to Bifurcate (Dkt. 56)

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Plaintiff filed the Motion to Bifurcate on May 24, 2017, requesting to withdraw the

23 contaminated water claim alleged in his Complaint because he joined a separate lawsuit. Dkt. 56.
24 In this Court, there are approximately 200 plaintiffs currently alleging constitutional violations

ORDER - 1

1 arising from the potable water at the Special Commitment Center (“SCC”). See Malone v.
2 Strong, 3:16-cv-5284-RBL-DWC (“Related Case”). Plaintiff contends he has joined the Related
3 Case and is now being represented by Attorney Casey Arbenz. 1 Dkt. 56. Plaintiff has not yet
4 been named in the Related Case and Mr. Arbenz has not yet entered an appearance on behalf of
5 Plaintiff in the Related Case or in the current case. While Mr. Arbenz is not currently
6 representing Plaintiff, he does not object to representing Plaintiff in the Related Case. Further,
7 the Court finds joining Plaintiff in the Related Case promotes judicial efficiency and economy.
8 Therefore, the Court grants Plaintiff’s Motion to Bifurcate (Dkt. 56). The Court anticipates Mr.
9 Arbenz will enter an appearance on behalf of Plaintiff in the Related Case on or before July 21,
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The Court recognizes Plaintiff cannot use Federal Rule of Civil Procedure 41(a)(1) to

12 “dismiss, unilaterally, a single claim from a multi-claim complaint.” Ethridge v. Harbor House
13 Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988). Rather, a plaintiff’s voluntary dismissal of a
14 single claim is subject to Rule 15 of the Federal Rules of Civil Procedure. See Hells Canyon
15 Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Here, while Plaintiff
16 cannot amend as a matter of right, leave to amend ‘shall be freely given when justice so
17 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
18 (quoting Fed.R.Civ.P. 15(a)). Plaintiff is attempting to withdraw, not add, a claim and there is no
19 evidence Defendants will be prejudiced if the Court allows Plaintiff to withdraw the
20 contaminated water claim from this case. Therefore, the Court deems Plaintiff’s Complaint
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This Court has determined exceptional circumstances exist which allow the Court to assist plaintiffs in all

23 the potable water cases in securing counsel. Attorney Casey Arbenz was identified as an attorney willing to

represent one or all IFP plaintiffs upon entering an agreement regarding the terms of representation. Mr. Arbenz has

24 filed a notice of appearance in the Related Case.

ORDER - 2

1 amended. The claims alleging constitutional violations arising from the potable water at the SCC
2 are withdrawn from the Complaint.
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II.

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On May 9, 2017, the Court stayed Plaintiff’s case while waiting for an answer and

Motion to Lift Stay (Dkt. 57)

5 scheduling order to be filed in the Related Case. Dkt. 55. Plaintiff has now withdrawn the claim
6 in his Complaint related to the claims alleged in the Related Case, see Section I, supra, and
7 moves to lift the stay. Dkt. 57. As the Court has granted Plaintiff’s Motion to Bifurcate, the
8 Court agrees the stay is now unnecessary. Therefore, Plaintiff’s Motion to Lift Stay (Dkt. 57) is
9 granted.
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III.

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After review of the Motions and relevant record, Plaintiff’s Motion to Bifurcate (Dkt. 56)

Conclusion

12 and Motion to Lift Stay (Dkt. 57) are granted. Any claims arising from the contaminated water at
13 the SCC are withdrawn from the Complaint. 2 The Clerk of Court is directed to add Richard Roy
14 Scott as a Plaintiff in Malone v. Strong, 3:16-cv-5284-RBL-DWC. The Clerk is also directed to
15 send of a copy of this order to Mr. Arbenz. As stated above, the Court anticipates Mr. Arbenz
16 will enter an appearance on behalf of Plaintiff in the Related Case on or before July 28, 2017.
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Dated this 13th day of July, 2017.

A

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David W. Christel
United States Magistrate Judge

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As only one claim is being withdrawn from the Complaint, the Court finds it is unnecessary to require

24 Plaintiff to file an amended complaint.

ORDER - 3