Mason 240482 v. Ryan

Opinion

1 SH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nathan Sterling Mason, No. CV 19-04987-PHX-DGC (MHB) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.

14 15 Plaintiff Nathan Sterling Mason, who is currently confined in Arizona State Prison 16 Complex (ASPC)-Lewis, Buckley Unit in Buckeye, Arizona, brought this civil rights 17 action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff’s “Motion to Dismiss 18 Certain Defendants/Motion to Reconsider Doc. 113.” (Doc. 114.) 19 I. Background 20 Upon screening Plaintiff’s First Amended Complaint (Doc. 19) under 28 U.S.C. 21 § 1915A(a), the Court determined that Plaintiff stated the following claims: (1) an Eighth 22 Amendment medical care claim against former Arizona Department of Corrections (ADC) 23 Director Charles Ryan in his individual capacity in Count One; (2) an Eighth Amendment 24 official capacity medical care claim in Count One against current ADC Director David 25 Shinn; (3) an Eighth Amendment medical care claim in Count Four against Nurse 26 Practitioner Ende in his individual capacity; (4) First Amendment retaliation claims in 27 Count Three against Special Security Unit Officer Taylor, Lieutenant Randall Lowe, 28 Corrections Officer (CO) III Jaymond Williams, Deputy Warden Ronald Abbl, CO II 1 Evans, CO II Kila, and CO II Vargas; and (5) a First Amendment retaliation claim and an 2 Eighth Amendment excessive force claim against CO II Hernandez in Count Three. 3 (Doc. 28.) The Court ordered these Defendants to answer the respective claims against 4 them and dismissed the remaining claims and Defendants. (Id.) 5 On February 5, 2020, service was returned unexecuted for Defendants Vargas and 6 Hernandez. (Docs. 47–48.) The Court ordered Defendants to file the last known addresses 7 of Defendants Hernandez and Vargas under seal, and Defendants responded that they were 8 unable to identify which correctional officers “Hernandez” and “Vargas” Plaintiff was 9 referring to in his complaint because there were many correctional officers employed by 10 the Arizona Department of Corrections with those surnames. (Docs. 96, 102.) Defendants 11 were therefore unable to provide the Court or Plaintiff with the current work locations or 12 last known home addresses of Defendants Vargas and Hernandez. (Doc. 102.) On May 13, 13 2020, the Court dismissed Defendants Vargas and Hernandez for failure to timely serve 14 and failure to prosecute. (Doc. 113.) 15 II. Plaintiff’s Motion 16 A. Voluntary Dismissal of Defendants 17 In his Motion, Plaintiff states that he moves to voluntarily dismiss Defendants 18 Evans, Kila and Williams from the action. (Doc. 114.) Federal Rule of Civil Procedure 19 41(a)(2) provides that after a defendant has answered the complaint, “an action may be 20 dismissed at the plaintiff’s request only by court order, on terms that the court considers 21 proper.” Fed. R. Civ. P. 41(a)(2). “A district court should grant a motion for voluntary 22 dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain 23 legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Unless 24 otherwise ordered, dismissal is without prejudice. Fed. R. Civ. P. 41(a)(2). Here, 25 Defendants have not objected to Plaintiff’s request to dismiss Defendants Evans, Kila, and 26 Williams, and they present no argument that prejudice will result if this portion of 27 Plaintiff’s Motion is granted. The Court therefore will grant Plaintiff’s request and dismiss 28 Defendants Evans, Kila, and Williams without prejudice. 1 B. Reconsideration of May 13, 2020 Order 2 Plaintiff asks the Court to reconsider its Order dismissing Defendant Hernandez. 3 (Doc. 114.) Plaintiff states that he “received Hernandez’s name less than 1 week prior to 4 the Court’s sua sponte dismissal” and that he “planned to submit the summons on 5 5/14/2020” which would have been his first opportunity to do so after identifying 6 Defendant Hernandez. (Id.) 7 In his First Amended Complaint, Plaintiff alleges that he was assaulted by CO G. 8 Hernandez on September 7, 2019. (Doc. 19 at 12.) On May 8, 2020, Defendants filed a 9 supplemental notice indicating that there was a CO Guillermo Hernandez assigned to the 10 Buckley Unit on that day, and Defendants provided the physical address for the Buckley 11 Unit. (Doc. 112.) The Court dismissed Defendant Hernandez just a few days after 12 Defendants filed their supplement notice and before Plaintiff had an opportunity to serve 13 Defendant Hernandez at the address provided by Defendants. The Court finds that 14 reconsideration is warranted and will reinstate Hernandez as a Defendant and give Plaintiff 15 60 days to execute service on Defendant Hernandez. Failure to serve Defendant Hernandez 16 within this time may result in his dismissal from the action. 17 IT IS ORDERED: 18 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s “Motion 19 to Dismiss Certain Defendants/Motion to Reconsider Doc. 113” (Doc. 114), and the 20 Motion is granted. 21 (2) Defendants Evans, Kila, and Williams are dismissed without prejudice 22 pursuant to Federal Rule of Civil Procedure 41(a)(2). 23 (3) The portion of the Court’s May 13, 2020 Order (Doc. 113) in which the Court 24 dismissed Defendant Hernandez is vacated. 25 (4) The Clerk of Court must reinstate Hernandez as a Defendant and provide 26 Plaintiff with a service packet as to Defendant Hernandez. 27 (5) Plaintiff must complete and return the service packet to the Clerk of the Court 28 as to Defendant Hernandez within twenty-one (21) days from the date this Order is filed. 1 (6) The time for completing service on Defendant Hernandez shall be extended sixty (60) days from the date this Order is filed. Failure to serve Defendant Hernandez 3 | within this time may result in his dismissal. 4 Dated this 2nd day of June, 2020. .

David G. Campbell 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28