FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS BEARD, KATAVICH, SAGUSTA, SANGER, YOUSSEF, MARSHALL, THARRAT, and KELSO AND ALL CLAIMS AGAINST THEM WITHOUT PREJUDICE AND WITHDRAWING PRIOR FINDINGS AND RECOMMENDATION (Docs. 31, 32, 37)

30-DAY DEADLINE.

JENNIFER L. THURSTON, Magistrate Judge.

In his Second Amended Complaint ("2ndAC") Plaintiff did not name all of the defendants he originally named in this action. Specifically, Plaintiff omitted: CDCR Secretary Jeffrey A. Beard; Warden John N. Katavich; R. Sagusta; M. Sanger; Ashraf Youssef, MD; Brian Marshall; Robert Tharratt, MD; and J. Clark Kelso. Thus it appeared that Plaintiff no longer wished to pursue these eight Defendants, necessitating their dismissal from this action. Accordingly, on March 11, 2015, a Findings and Recommendations issued to dismiss those six Defendants with prejudice per Federal Rule of Civil Procedure1 41(a)(1)(B). (Doc. 37.)

Plaintiff filed objections and a notice of voluntary dismissal of Jeffrey A. Beard, John N. Katavich, Ashraf Youssef, M.D., and Brian Marshall seeking to dismiss them without prejudice per Rule 41(a)(1)(A). (Docs. 38, 39.) Plaintiff clarified that Defendant Sagusta's correct name is "Bunholm Sagasta" who is now named as a Defendant in this action and that Defendant Sanger's correct name is "Michael Songer" and he likewise is now named as a Defendant in this action. (Doc. 38.) Thus, Defendants by the name of "Sagusta" and "Sanger," which were apparently misspellings, are properly terminated from this action. Likewise, Defendants Kelso and Tharratt should be dismissed with prejudice, as acknowledged by Plaintiff, given they are immune from suit pursuant to the Order Adopting Receiver in Plata v. Schwarzenegger, et al., (3:01-cv-01351-TEH, ECF No. 473, 6:1-2). (Id., at 7:18-22.)

Plaintiff clarified also that Beard, Katavich, Youssef, and Marshall were intentionally omitted from the 2ndAC because he could not identify with particularity, sufficient facts to link them to the alleged violations of Plaintiff's federal rights, indicating that discovery had not begun for him to ascertain requisite facts. (Id., at 5:20-28.) However, Plaintiff indicated that he desired to be able to pursue any of these four possible Defendants (Beard, Katavich, Youssef, and/or Marshall) if facts are later discovered to sufficiently link them to his claims. (Id., at 6:6-15.) In both his objections and his reply to Defendants' response, Plaintiff asserts that his intentional omission of Beard, Katavich, Youssef, and Marshall as Defendants in the 2ndAC and/or his Voluntary Dismissal of Beard, Katavich, Youssef, and Marshall operate without prejudice per Rule 41(a)(1), citing Pedrina v. Han Kuk Chun, 987 F.2d 608 (9th Cir. 1993). (Id., at 7:23-8:12; Doc. 48, P's 2nd Amd. Reply, 3:7-4:19.)

Defendants argue that Plaintiff's removal of Beard, Katavich, Youssef, and Marshall as Defendants in the 2ndAC operated as voluntary dismissals under Rule 41(a)(1)(B) that were on the merits and should be with prejudice, relying on ASX, Inc. Corp. v. Newton, 183 F.3d 1265, 1268 (11th Cir. 1999), and asserting that prior to his filing his complaint, Plaintiff should have determined whether sufficient basis exists for him to proceed against Beard, Katavich, Youssef, and/or Marshall and that none of them may be pursued under a theory of supervisory liability. (Doc. 43, Ds Resp., 2:10-3:14.)

Rule 41(a)(1)(A) allows a Plaintiff to "dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Subsection (B) of Rule 41 provides that, "[u]nless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." Subsection (2) of Rule 41 provides in pertinent part that, "[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. . . ."

In Pedrina, Plaintiffs dropped a person ("Hong") who had been named as a Defendant in prior pleadings from being named in their fourth amended complaint. Pedrina, 987 F.2d at 610. The district court in that action ordered Plaintiffs to file a motion for voluntary dismissal of all parties who were named as defendants in the third amended complaint, but not in the fourth amended complaint. Id. When Plaintiffs did not immediately respond to the order, Hong filed a motion to dismiss with prejudice, after which Plaintiffs filed a notice of voluntary dismissal. Id. The district court thereafter sanctioned Plaintiffs for violating its order by not filing a motion for dismissal. Id. The Ninth Circuit held that the district court lacked authority to require Plaintiff's to file a motion to dismiss. Id. Though the Ninth Circuit did not distinguish whether Hong was deemed dismissed upon the filing of the fourth amended complaint that did not name him as a Defendant, or upon the filing of Plaintiff's notice of voluntary dismissal, it held that Plaintiff's actions constituted a dismissal of Hong without prejudice under Rule 41(a)(1). Id.

Accordingly, as of the dates that Plaintiff filed the 2ndAC and the notice of voluntary dismissal, Defendants Beard, Katavich, Youssef, and Marshall had filed neither answers nor motions for summary judgment. Thus, as in Pedrina, dismissal of Defendants Beard, Katavich, Youssef, and Marshall should be without prejudice, under Rule 41(a)(1).

II. CONCLUSION

For the reasons discussed herein above, "R. Sagusta" and "M. Sanger" should be terminated from the docket of this case; Robert Tharratt, MD and J. Clark Kelso should be dismissed with prejudice; and CDCR Secretary Jeffrey A. Beard; Warden John N. Katavich; Ashraf Youssef, MD; and Brian Marshall should be deemed dismissed from this action without prejudice.

Accordingly, the Court RECOMMENDS:

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 30 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.