Opinion
No. CV-16-03094-PHX-DGC (BSB)
03-04-2019
Peter Paul Pearson, Sr., Plaintiff, v. GEO Group Incorporated, et al., Defendants.
ORDER
Plaintiff Peter Pearson brought this civil rights action pursuant to 42 U.S.C. § 1983 against four officials at the Central Arizona Detention Facility in Florence, Arizona. (Doc. 1.) The Court screened Plaintiff's Complaint and determined that he stated plausible claims for relief concerning alleged violations of his First Amendment rights. (Doc. 5.) Defendants were directed to respond to the Complaint, and, thereafter, they filed an Answer and eventually moved for summary judgment. (Id.; Doc. 32.) Before the Court is Plaintiff's Motion to Dismiss Case. (Doc. 74.) Defendants responded and stated that they have no objection to dismissal, but request that it be with prejudice. (Doc. 75.)
Federal Rule of Civil Procedure 41(a)(2) provides that if the opposing party has served either an answer or a motion for summary judgment, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). While Defendants request dismissal with prejudice, they do not establish that prejudice will result if this action is dismissed without prejudice. Indeed, part of Defendants' argument is that Plaintiff's claims are nonexhausted. If true, dismissal for nonexhaustion must be without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002). For that reason, and because the Court will not reach the ultimate merits of Plaintiff's claims, the Court will grant Plaintiff's motion and dismiss the action without prejudice. Fed. R. Civ. P. 41(a)(2).
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion to Dismiss (Doc. 74) and it is granted; the Complaint and this action are dismissed without prejudice.
(2) All other pending motions are denied as moot and the Clerk of the Court must enter judgment accordingly.
Dated this 4th day of March, 2019.
/s/_________
David G. Campbell
Senior United States District Judge