                           NOT FOR PUBLICATION                           FILED
                                                                          DEC 5 2017
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JAMES DAVIS BENNETT,                            No.    15-56448

             Plaintiff-Appellant,               D.C. No.
                                                2:14-CV-04697-RGK-E
    v.

JASPAL DHALIWAL, et al.,                        MEMORANDUM*

             Defendants-Appellees.

JAMES DAVIS BENNETT and PAMELA                  No.    16-55694
BENNETT,
                                                D.C. No.
             Plaintiffs-Appellants,             2:15-CV-01923-RGK-E

    v.

UNITED STATES OF AMERICA,

             Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding




*
      These two cases were consolidated for oral argument and are now
consolidated for decision. This disposition is not appropriate for publication and is
not precedent except as provided by Ninth Circuit Rule 36-3.

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                    Argued and Submitted November 16, 2017
                              Pasadena, California

Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,** District
Judge.

      While incarcerated at federal correctional facilities, James Davis Bennett

contracted tuberculosis and Pott’s disease. He brought a Bivens suit against five

medical professionals at the Lompoc, California federal correctional institution.

After exhausting administrative remedies, Bennett and his wife later filed a Federal

Tort Claims Act (“FTCA”) suit against the United States.

       In these appeals, the Bennetts challenge the district court’s denial of their

motion for voluntary dismissal of the FTCA action and its subsequent dismissal of

that action with prejudice for failure to prosecute pursuant to Federal Rule of Civil

Procedure 41(b). Bennett also appeals the district court’s summary judgment

against him in the Bivens action. In the FTCA action, we vacate and remand with

instructions to dismiss the action without prejudice, but we affirm the summary

judgment in the Bivens action.

      1. The district court abused its discretion in rejecting the Bennetts’

voluntary motion to dismiss the FTCA action without prejudice and in


**
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.



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subsequently dismissing the action for failure to prosecute. See Al-Torki v.

Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). The Bennetts repeatedly notified

both the district court and the United States before trial of their intention not to

proceed with the FTCA action, eventually seeking to dismiss that suit without

prejudice pursuant to Rule 41(a)(2). “A district court should grant a motion for

voluntary dismissal . . . unless a defendant can show that it will suffer some plain

legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001);

see also Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996)

(finding abuse of discretion in failure to grant Rule 41(a)(2) motion). The United

States would not have suffered any legal prejudice from a voluntary dismissal. See

Hyde & Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir. 1994). Any loss of the

FTCA’s judgment bar defense does not constitute legal prejudice, as it represented

only the loss of a mere potential defense that had not yet accrued to the United

States.

      2. We review the district court’s grant of summary judgment against

Bennett in his Eighth Amendment Bivens action de novo. Oswalt v. Resolute

Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). In order to bring a successful

Eighth Amendment deliberate indifference claim, “mere malpractice, or even gross

negligence, does not suffice.” Wood v. Housewright, 900 F.2d 1332, 1334 (9th


                                            3
Cir. 1990). We conclude that no genuine issue of material fact exists as to whether

the medical professionals acted with deliberate indifference to Bennett’s serious

medical needs.

      a. With respect to Dr. Richard Gross, midlevel practitioner Annabel Rivera,

and Nurse Marsha Pinnell, the record presents no issue of material fact as to their

knowledge of Bennett’s serious medical need, let alone deliberate indifference.

Gross never personally interacted with Bennett, but instead only supervised his

treatment by co-signing the medical notes made by the other medical professionals

and approving their recommended treatment, including pain medication, an MRI,

and a consultation with an outside orthopedist. No evidence in the record suggests

that Rivera had actual knowledge of Bennett’s serious medical need, nor that she

was deliberately indifferent to any such need, as she prescribed him the

medications that he requested. Nor is there any evidence that Pinnell knew of

Bennett’s serious medical need.

      b. Vincente Tejada had perhaps the most contact with Bennett during the

period in question. Nonetheless, no evidence in the record supports that he had

actual knowledge of Bennett’s serious medical need. Nor was Tejada deliberately

indifferent to Bennett’s needs, as he prescribed various pain medications and anti-

inflammatory injections, ordered several lab tests and x-rays, ordered the first and


                                          4
emergency MRI, and placed Bennett on convalescent leave over the course of his

treatment. The record reflects that Tejada attempted to diagnose the source of

Bennett’s pain through various tests, and was responsive to Bennett’s requests for

medications and injections to relieve his pain in the meantime.

      c. Although Dr. Jaspal Dhaliwal’s deposition suggests that he may have

known Bennett had a serious medical need, the record is nonetheless clear that he

did not act with deliberate indifference to that need. Over the course of Bennett’s

visits, Dhaliwal evaluated his symptoms and responded with an attendant course of

treatment. Dhaliwal adjusted his treatment according to Bennett’s feedback,

prescribing him new medications for pain, constipation, and hypothyroidism, or

modifying the dosages on those medications. Dhaliwal ordered several x-ray and

lab tests in an effort properly to diagnose the source of Bennett’s pain. Dhaliwal’s

failure to order a more timely MRI may arguably constitute negligence, but given

the amount of medical care he provided to Bennett, as well as his responsiveness to

his pain, no reasonable jury could conclude that he was deliberately indifferent to

Bennett’s needs.

      3. We therefore VACATE the district court’s order granting dismissal with

prejudice in the FTCA action for failure to prosecute and REMAND with




                                          5
instructions to dismiss without prejudice. We AFFIRM the district court’s order

entering summary judgment against Bennett in his Bivens action.




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