Canell v. Multnomah County Detention Center

14 F. App'x 900

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2001
• Docket: No. 00-35647; D.C. No. CV-98-00575-ALA
• Status: Published

Opinion

MEMORANDUM

**

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. § 1291.¹ We review for an abuse of discretion, Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir.1996), and affirm.

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 counterclaim, 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.

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.

1 . 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).