Wallace v. Longano

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 William James Mathew Wallace II, CASE NO. 3:19-cv-05330-RJB-JRC 11 Plaintiff, ORDER 12 v. 13 Department of Corrections of Washington et al., Defendant.

16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. Plaintiff William James Mathew Wallace II, proceeding pro se and in forma pauperis, filed this civil rights complaint under § 1983. Before the Court is the parties’ stipulated partial motion to dismiss. Dkt. 53.

20 In the motion, the parties jointly move for an order dismissing plaintiff’s legal access and property claims and that the case continue on plaintiff’s Eighth Amendment and Americans with Disabilities Act (“ADA”) claims. Dkt. 53. However, the parties did not specify whether they have agreed whether dismissal of plaintiff’s legal access and property claims should be with or without prejudice. See Dkt. 53. Before issuing a recommendation on the parties’ motion, the Court finds that a supplemental memo is necessary to clarify whether the stipulated dismissal should be with or without prejudice. The parties are directed to file the supplemental memo on or before November 8, 2019. If no supplemental memo is filed, the Court will recommend dismissal of the claims without prejudice. See Hargis v. Foster, 282 F.3d 1154, amended by 312 6 F.3d 404, 406 (9th Cir. 2002) (The Ninth Circuit has indicated that, if a plaintiff fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the discretion of the lower court.).

9 The Court directs the Clerk’s Office to re-note the stipulated motion to dismiss (Dkt. 53) for November 8, 2019.

12 Dated this 24th day of October, 2019.

A J. Richard Creatura United States Magistrate Judge