Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner brought § 1983 action against county detention center. The United States District Court for the District of Oregon, Ann L. Aiken, J., granted center's motion to dismiss without prejudice its counterclaim seeking compensation for expense of prisoner's incarceration. Prisoner appealed. The Court of Appeals held that district court's action in dismissing, without prejudice, center's counterclaim and denying prisoner's summary judgment motion relating to counterclaim did not prejudice prisoner.
Affirmed.
Page 901.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding.
Before KOZINSKI, T.G. NELSON, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Alvin H. Canell, an Oregon state prisoner, appeals pro se the district court's order granting defendants' motion to dismiss without prejudice their counter-claim pursuant to Federal Rule of Civil Procedure 41(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for an abuse of discretion, Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir.1996), and affirm.
Although there was no final order at the time Canell filed this appeal, subsequent events in the district court have cured the prematurity of the appeal. See Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir.1980).
Canell filed a 42 U.S.C. § 1983 action against defendants. Canell alleges that defendants filed a counter-claim seeking compensation for the expense of his incarceration in Multnomah County Jail, pursuant to Or.Rev.Stat. § 169.151, in retaliation for his having filed his civil-rights action. Canell contends that such retaliation violates his constitutional rights.
Because Canell had filed a motion for summary judgment relating to defendants' counter-claim and refused to sign a stipulation to dismiss the counter-claim, defendants had to seek an order from the court to dismiss the counter-claim without prejudice. See Fed.R.Civ.P. 41(a)(2). When considering such a dismissal, the district court had to determine whether Canell would suffer "plain legal prejudice." See Westlands, 100 F.3d at 96. Canell contends that the district court's dismissal of the counter-claim and denial of his summary judgment motion prejudiced him by leaving the constitutional legitimacy of defendants allegedly retaliatory action unresolved. We reject Canell's argument and affirm the district court's order. See id. at 97.
We also reject Canell's argument that the district court improperly denied his summary judgment motion as moot. See Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir.1996).
We reject Canell's remaining contentions as meritless.
AFFIRMED.