Turner v. Reno Police Department

• Court: District Court, D. Nevada
• Decided: March 4, 2025
• Docket: 3:23-cv-00221
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 KERRY TURNER, Case No. 3:23-cv-00221-ART-CSD

5 Plaintiff, ORDER ON PLAINTIFF’S MOTION v. FOR VOLUNTARY DISMISSAL 6 (ECF No. 52) RENO POLICE DEPARTMENT, et al., 7 Defendants. 8 9 Plaintiff Kerry Turner brings this action under 42 U.S.C. § 1983 against 10 Defendants City of Reno, Detective Thomas Williams, and Detective Andrew 11 Hernandez. The Court screened Plaintiffs second amended complaint and allowed 12 him to proceed with Fourth Amendment complaints against Defendants Williams 13 and Hernandez. Before the Court is Plaintiff’s motion to voluntarily dismiss this 14 case without prejudice. (ECF No. 52.) Defendants filed a response supporting 15 dismissal, but request that the action be dismissed with prejudice based on their 16 pending motion to dismiss. (ECF No. 53.) 17 I. Legal Standard for Voluntary Dismissal 18 An action may be voluntarily dismissed by a Plaintiff under Fed. R. Civ. P. 19 41(a)(1)(A)(i) if the notice of dismissal is filed before the opposing party files either 20 an answer or a motion for summary judgment. Here, Defendants have filed a 21 motion to dismiss under Fed. R. Civ. P 12(b)(1) and 12(b)(6) (ECF No. 29) but no 22 answer or motion for summary judgment. 23 Generally, the filing of a motion to dismiss does not terminate the Plaintiff’s 24 right to voluntary dismissal under Rule 41(a)(1)(A)(i). Lucky Star Enterprises III, 25 LLC v. Wells Fargo Bank, N.A., 585 F.Supp.3d 1297, 1303 (W.D.Wash., 2022) 26 (citing Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970)). There is one 27 exception: where the motion to dismiss is accompanied by affidavits or other 28 documents dealing with matters outside the pleadings, and these are not 1 excluded by the district court, the motion is effectively converted into a summary 2 judgment motion under Fed. R. Civ. P. 56. 9 Charles A. Wright & Arthur Miller, 3 Fed. Prac. & Proc. Civ. § 2363 (4th ed. June 2024); Esquivel v. Arau, 913 F. Supp. 4 1382, 1386 (C. D. Cal., 1996). 5 II. Defendants’ Motion to Dismiss 6 Defendants’ motion to dismiss requests that the Court take judicial notice 7 of and incorporate by reference documents filed in Plaintiff’s state court 8 prosecution. When a court incorporates by reference documents not attached to 9 the complaint but whose contents are alleged in the complaint, it does not convert 10 a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 11 342 F.3d 903, 907–08 (9th Cir.2003) (“A court may, however, consider certain 12 materials—documents attached to the complaint, documents incorporated by 13 reference in the complaint, or matters of judicial notice—without converting the 14 motion to dismiss into a motion for summary judgment.”). Therefore, even if the 15 Court did consider the documents filed in Plaintiff’s state court prosecution, 16 Defendants’ motion to dismiss is not converted into a motion for summary 17 judgment. 18 Because this exception does not apply to Defendants’ motion to dismiss, 19 Plaintiff is entitled to voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i). 20 Under Fed. R. Civ. P. 41(a)(1)(B), “[u]nless the notice or stipulation states 21 otherwise, the dismissal is without prejudice.” Plaintiff’s motion for voluntary 22 dismissal requested dismissal without prejudice. (ECF No. 53 at 1.) 23 Plaintiff is therefore entitled to dismissal of this action without prejudice. 24 See Esquivel, 913 F. Supp. 1386 (C. D. Cal. 1996); Lucky Star Enterprises III, LLC 25 v. Wells Fargo Bank, N.A., 585 F. Supp. 3d 1297, 1303 (W. D.W ash., 2022). 26 I. CONCLUSION 27 It is therefore ordered that Plaintiff’s motion for voluntary dismissal (ECF 28 No. 52) is GRANTED. 1 It is further ordered that this action is DISMISSED WITHOUT PREJUDICE 2 || under Fed. R. Civ. P. 41(a)(1). 3 The Clerk of the Court is instructed to ENTER JUDGMENT and CLOSE this 4 || case. 5 6 Dated this 4th day of March 2025. 7 8 As jlosed Jer 9 ANNE R. TRAUM 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28