ORDER REQUIRING PLAINTIFF TO NOTIFY COURT IF HE WISHES TO WITHDRAW HIS REQUEST FOR A VOLUNTARY DISMISSAL OF DEFENDANT CORRECTIONAL OFFICER C. SCOTT

(ECF No. 72)

BARBARA A. McAULIFFE, Magistrate Judge.

Plaintiff Alvaro Quezada ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds against Defendants Fisher, Jose, Doria, Scott and Ortiz for violation of the Fourteenth Amendment to the United States Constitution.

I. Background

On October 1, 2015, Plaintiff filed a notice of voluntary dismissal of Defendant Scott, pursuant to Fed. R. Civ. P. 41(a). (ECF No. 72.) In his filing, Plaintiff states that he is informed Defendant Scott is deceased, and as a result he wishes to dismiss Defendant Scott from this action. He further extends his condolences and sympathies to "all that have been affected by Mr. Scott's death." (Id. at p. 1.) He specifies that his intended dismissal operates only as to Defendant Scott and to no other defendants.

II. Standard

Under Federal Rule of Civil Procedure 41(a)(2), a plaintiff may request dismissal after an opposing party has served either an answer or a motion for summary judgment, as in this case, "only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). "A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the dismissal." Hepp v. Conoco, Inc., 97 F. App'x 124, 125 (9th Cir. 2004) (citations omitted). "Legal prejudice is prejudice to `some legal interest, some legal claim, [or] some legal argument.'" Maxum Indem. Ins. Co. v. A-1 All Am. Roofing Co., 299 F. App'x 664, 666 (9th Cir. 2008) (quoting Westlands Water Dist. V. United States, 100 F.3d 94, 97 (9th Cir. 1996)).

III. Discussion

The Court finds that Defendant Scott, or his successors-in-interest(s), will suffer no legal prejudice by being dismissed from this action. Defendant Scott did not file a counterclaim or raise any other issue which must be decided in this matter.

Nevertheless, Defendant Scott or his successor(s) could be prejudiced by a dismissal without prejudice. Plaintiff's allegations underlying his claim against Defendant Scott occurred over eight years ago, and his motion comes after months of discovery and the filing of a motion for summary judgment. Without any ruling on that motion or a dismissal with prejudice, Defendant Scott's successor(s) could face potential re-litigation of a matter that occurred many years ago and involving a now-deceased witness.

For these reasons, the Court finds that under these circumstances, if Plaintiff's request for a voluntary dismissal is granted, it should be done with prejudice. A court granting a motion for voluntary dismissal with conditions must give the plaintiff "a reasonable period of time within which [either] to refuse the conditional voluntary dismissal by withdrawing [the] motion for dismissal or to accept the dismissal despite the imposition of conditions." Beard v. Sheet Metal Workers Union, 908 F.2d 474, 476 (9th Cir. 1990). Therefore, the Court shall grant Plaintiff thirty (30) days to determine whether he wishes to refuse the conditional voluntary dismissal recommended here.

IV. Conclusion and Order

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.