Mahmoud v. Board of Prison Commissioners

• Court: District Court, D. Nevada
• Decided: August 9, 2022
• Docket: 2:22-cv-00368
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MOHAMED A. MAHMOUD, Case No.: 2:22-cv-00368-JAD-VCF 4 Plaintiff Order Confirming Voluntary Dismissal 5 v. Under Rule 41(a)(1) and Denying Motions as Moot 6 BOARD OF PRISON COMMISSIONERS, et al. [ECF Nos. 25, 28, 29, 31, 32, 35, 40] 7 Defendants 8

9 In screening pro se prisoner Mohamed Mahmoud’s complaint in this civil-rights action, I 10 found that he pled colorable First Amendment retaliation and Eighth Amendment excessive- 11 force claims and allowed those claims to proceed to mediation with a court-appointed mediator. 12 But it appeared that Mahmoud initiated this action just 12 days after the conduct he complains 13 about occurred. So I explained that the Prison Litigation Reform Act (PLRA) requires prisoners 14 to exhaust their available administrative remedies before filing lawsuits challenging prison 15 conditions. I noted some circumstances when an administrative remedy could be considered not 16 available and therefore prevent dismissal for failure to exhaust if defendants raised that issue in a 17 proper motion. And I told Mahmoud that he could file a notice voluntarily dismissing this action 18 without prejudice to file a new action if he needed time to comply with the PLRA’s exhaustion 19 requirement.1 20 About a month later Mahmoud filed a document titled “Motion to Dismiss Action 21 Without Prejudice” in which he seeks to dismiss this action to exhaust his administrative 22 remedies. Mahmoud states facts in the motion that could be construed as arguing why no 23

1 ECF No. 26. 1 administrative remedies are available to resolve his claims. For example, Mahmoud states that 2 Sgt. Navarrete told Mahmoud he would be retaliated against if he continued filing grievances 3 against the staff.2 Because the court had not ruled on the dismissal motion, about two months 4 later Mahmoud filed another motion titled “Motion to Dismiss an Action Without Prejudice” in

5 which he seeks to dismiss this action to exhaust his administrative remedies and again states 6 facts that could be construed as arguing why he cannot do so. Mahmoud also reports that he has 7 been moved to another prison.3 8 Mahmoud does not invoke Federal Rule of Civil Procedure 41(a)(1) in either dismissal 9 motion, but it is clear to this jurist that this rule is the basis of his requests. Rule 41(a)(1)(A)(i) 10 permits a plaintiff to dismiss an action without a court order by filing “a notice of dismissal 11 before the opposing party serves either an answer or a motion for summary judgment[.]” The 12 Ninth Circuit instructed in Commercial Space Management Company, Inc. v. Boeing Company, 13 Inc. that “it is beyond debate that a dismissal under Rule 41(a)(1) is effective on filing, no court 14 order is required, the parties are left as though no action had been brought, the defendant can’t

15 complain, and the district court lacks jurisdiction to do anything about it.”4 16 The answer to just how to treat Mahmoud’s motions is not a straightforward one because 17 he moves to voluntarily dismiss this action to exhaust his administrative remedies while 18 simultaneously stating reasons why those remedies might not be available to him. This difficulty 19 is no doubt complicated by Mahmoud’s incarceration. But no responsive pleading or summary- 20 judgment motion has been filed in this case, so Mahmoud’s voluntary dismissal was effective 21 22 2 ECF No. 35. 23 3 ECF No. 40. 4 Com. Space Mgmt. Co. Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1078 (9th Cir. 1999). 1] under Rule 41(a)(1) upon its filing regardless of the “motion” label he used to do so.° And as 2|| Commercial Space instructs, Rule 41(a)(1) leaves no room for this court “to do anything about

4 IT IS THEREFORE ORDERED that Mahmoud’s motions to dismiss this action without 5|| prejudice (ECF Nos. 35, 40) are construed as notices of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i), and it is confirmed that this action is DISMISSED 7| WITHOUT PREJUDICE. 8 IT IS FURTHER ORDERED that Mahmoud’s motions for various relief (ECF Nos. 25, 9} 28, 29, 31, 32) are DENIED as moot. 10 Finally, the Clerk of the Court is directed to CLOSE THIS CASE accordingly. 11 Dated: August 9, 2022 12 LOR U.S. District Jimige 13 14 15 16 17 18 19 20 21 22 See id. at 1076 (discussing Commercial Space’s second voluntary dismissal). 6 Id. at 1078.