Opinion
CV 18-8133-PA (E)
12-11-2020
RUBEN F. MARTINEZ, Plaintiff, v. L. SCOTT, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
Plaintiff, a pro se state prisoner proceeding in forma pauperis, filed this civil rights action on September 19, 2018, against prison officials at Plaintiff's former place of incarceration at the California Men's Colony, East Facility (“CMC”). The original Complaint named as Defendants: (1) CMC prison officials L. Scott, Bravo and Blair; and (2) CMC Warden J. Gastelo. Plaintiff alleged that: (1) in June 2017, Defendant Scott subjected Plaintiff to an improper and retaliatory pat-down search of Plaintiff's “intimate parts”; and (2) two days later, Defendant Bravo conducted an improper and retaliatory search of Plaintiff's “intimate parts” with a handheld metal detector while Defendant Blair assertedly watched but did nothing to prevent the allegedly improper search. The case was assigned to former United States Magistrate Judge Patrick J. Walsh.
On February 19, 2019, Defendants Scott, Bravo, Blair and Gastelo filed a motion to dismiss the original Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants did not challenge the legal sufficiency of Plaintiff's Eighth Amendment claims. On June 12, 2019, Magistrate Judge Walsh filed a Report and Recommendation recommending dismissal with prejudice of Plaintiff's claims alleging: (a) violation of the Prison Rape Elimination Act; (b) violation of federal criminal statutes; (c) verbal harassment; (d) violation of due process; (e) denial of administrative grievances; (e) respondeat superior liability against Warden Gastelo; and (f) an entitlement to injunctive and declaratory relief. At the same time, Magistrate Judge Walsh recommended the dismissal without prejudice of Plaintiff's claims alleging: (a) conspiracy in violation of 42 U.S.C. section 1985; (b) retaliation; and (c) negligence and sexual battery in violation of state law. On August 22, 2019, the District Judge accepted and adopted these recommendations.
On August 21, 2020, the case was transferred to the undersigned Magistrate Judge. On August 26, 2020, Plaintiff filed a First Amended Complaint, identifying the Defendants as Defendants Scott, Bravo and Blair, sued in their individual capacities (“Defendants”). The First Amended Complaint contains factual allegations similar to those in the original Complaint and asserts claims for alleged violations of the Eighth Amendment against all Defendants (id., ¶¶ 61-63). Plaintiff also makes reference to alleged sexual battery (id., ¶¶ 61-62). In the prayer for relief, Plaintiff seeks: (1) a declaration that Defendants violated Plaintiff's constitutional rights; (2) an injunction keeping Defendants separate from Plaintiff; and (2) compensatory and punitive damages (id., ¶¶ 67-69).
On September 29, 2020, Defendants filed a “Motion to Dismiss First Amended Complaint” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Motion to Dismiss”). On November 23, 2020, Plaintiff filed a “Reply to Notice of Motion to Dismiss First Amended Complaint, etc.” (“Reply”).
DEFENDANTS' CONTENTIONS
Defendants do not challenge the legal sufficiency of Plaintiff's Eighth Amendment claims (see Defendants' Mem., p. 1 n.1). Rather, Defendants contend:
1. Plaintiff's state law claims allegedly fail because Plaintiff again has failed to plead compliance with the claims presentation requirements of the California Government Claims Act;
2. Plaintiff allegedly again has failed to state cognizable retaliation and conspiracy claims; and
3. Defendants allegedly are entitled to qualified immunity on Plaintiff's claims of asserted conspiracy and retaliation.
PLAINTIFF'S OPPOSITION
In the Reply, Plaintiff requests that the Court dismiss Defendant Blair from the action without prejudice. Plaintiff also requests that the Court dismiss the retaliation claim, the conspiracy claim and all state law claims (Reply, p. 1). Plaintiff seeks to proceed only on the Eighth Amendment claims against Defendants Scott and Bravo.
DISCUSSION
While it is somewhat unclear from the First Amended Complaint whether Plaintiff intended to allege separate claims of sexual battery, conspiracy and retaliation, Plaintiff's Reply requests that the Court dismiss any such claims. “Rule 15 [of the Federal Rules of Civil Procedure], not Rule 41, governs the situation when a party dismisses some, but not all, of its claims.” General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1513 (9th Cir. 1995), cert. denied, 516 U.S. 1146 (1996) (citations omitted). Under Rule 15(a)(2), the court should grant leave to amend “when justice so requires.” Because both Plaintiff and Defendants request dismissal of any claims of sexual battery, conspiracy and retaliation, the Court should dismiss those claims and deem the First Amended Complaint to be amended to delete any such claims.
Rule 41(a)(1) of the Federal Rules of Civil Procedure authorizes a plaintiff to file a notice of voluntary dismissal of a defendant before the filing of an answer. However, because Defendants previously filed an Answer to the original Complaint, Rule 41(a)(1) does not govern Plaintiff's request for voluntary dismissal of the action as against Defendant Blair. See Armstrong v. Frostie Co., 453 F.2d 914, 916 (4th Cir. 1971) (plaintiff cannot file a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure where defendant has filed an answer to a previous, superseded complaint); accord, Welsh v. Correct Care, L.L.C., 915 F.3d 341, 344 (5th Cir. 2019); Baiul v. NBC Sports, a division of NBCUniversal Media LLC, 708 Fed.Appx. 710, 713 (2d Cir. 2017), cert. denied, 138 S.Ct. 1299 (2018); Sanchez v. Seterus, Inc., 2017 WL 4355146, at *3 (N.D. Cal. Oct. 2, 2017); Milota v. Hexion Specialty Chemicals Canada, Inc., 2015 WL 1737302, at *3-4 (D. Or. Apr. 16, 2015). Therefore, the Court considers Plaintiff's request under 41(a)(2) of the Federal Rules of Civil Procedure. In light of the current posture of the case, and the expressed desires of the parties, the action against Defendant Blair should be dismissed without prejudice.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) dismissing any state law claims, retaliation claims and conspiracy claims alleged in the First Amended Complaint without prejudice and without leave to amend; (3) dismissing the action without prejudice as against Defendant Blair; and (4) ordering Defendants Scott and Bravo to file an Answer to the Eighth Amendment claims contained in the First Amended Complaint within twenty-one (21) days of the date of the Order.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
PERCY ANDERSON UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that: (1) any state law claims, retaliation claims and conspiracy claims alleged in the First Amended Complaint are dismissed without prejudice and without leave to amend; (2) the action is dismissed without prejudice as against Defendant Blair; and (3) Defendants Scott and Bravo are ordered to file an Answer to the Eighth Amendment claims contained in the First Amended Complaint within twenty-one (21) days of the date of the Order.
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order and the Magistrate Judge's Report and Recommendation on Plaintiff and counsel for Defendants.