Wallace v. Longano ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 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., 14 Defendant. 15 16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States 17 Magistrate Judge J. Richard Creatura. Plaintiff William James Mathew Wallace II, proceeding 18 pro se and in forma pauperis, filed this civil rights complaint under § 1983. Before the Court is 19 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 21 property claims and that the case continue on plaintiff’s Eighth Amendment and Americans with 22 Disabilities Act (“ADA”) claims. Dkt. 53. However, the parties did not specify whether they 23 have agreed whether dismissal of plaintiff’s legal access and property claims should be with or 24 1 without prejudice. See Dkt. 53. Before issuing a recommendation on the parties’ motion, the 2 Court finds that a supplemental memo is necessary to clarify whether the stipulated dismissal 3 should be with or without prejudice. The parties are directed to file the supplemental memo on or 4 before November 8, 2019. If no supplemental memo is filed, the Court will recommend 5 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 7 whether the request is for dismissal with or without prejudice, the matter is left to the discretion 8 of the lower court.). 9 The Court directs the Clerk’s Office to re-note the stipulated motion to dismiss (Dkt. 53) 10 for November 8, 2019. 11 12 Dated this 24th day of October, 2019. 13 14 A 15 J. Richard Creatura 16 United States Magistrate Judge 17 18 19 20 21 22 23 24