(PC) Howell v. Galan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No. 1:19-cv-00567-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE TO PROCEED ON COGNIZABLE 13 v. CLAIMS 14 GALAN, et al., (ECF Nos. 1, 13) 15 Defendants. 16 17 Plaintiff Kareem J. Howell is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. 19 On October 18, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff 20 stated a cognizable claim against Defendants Galan and Guzman for deliberate indifference to 21 serious medical needs for failing to provide heart medication and a cognizable claim against 22 Defendants Guzman and Sanchez for retaliation, but failed to state any other cognizable claims 23 against any other defendant. (ECF No. 13.) The Court ordered Plaintiff to either file a first 24 amended complaint or notify the Court in writing of his willingness to proceed only on the 25 medical deliberate indifference claim against Defendants Galan and Guzman and the retaliation 26 claim against Defendants Guzman and Sanchez, which would result in Plaintiff’s voluntary 27 dismissal of Defendants Flores and Baraona and all other claims, per Federal Rule of Civil 28 Procedure 41(a)(1)(A)(i). (Id. at 9-10.) 1 On October 28, 2019, Plaintiff notified the Court of his willingness to proceed only on the 2 cognizable claims identified by the Court. (ECF No. 14.) As explained in the Court’s October 3 18, 2019 screening order, this notification also results in Plaintiff’s voluntary dismissal of 4 Defendants Flores and Baraona and all other claims pursuant to Rule 41(a)(1)(A)(i). (ECF No. 5 13, at 9-10.) 6 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action 7 prior to service by the defendant of an answer or a motion for summary judgment.” Commercial 8 Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and 9 citation omitted). “A plaintiff may dismiss some or all of the defendants, or some or all of his 10 claims, through a Rule 41(a)(1) notice. The filing of a notice of voluntary dismissal with the court 11 automatically terminates the action as to the defendants who are the subjects of the notice.” 12 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (internal citations omitted). “[A] 13 dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left 14 as though no action had been brought, the defendant can’t complain, and the district court lacks 15 jurisdiction to do anything about it.” Commercial Space Mgmt., 193 F.3d at 1078. 16 No Defendants have been served in this action and no defendant has filed an answer or 17 motion for summary judgment. 18 Accordingly, it is HEREBY ORDERED that: 19 1. This action will proceed on Plaintiff’s complaint, filed on May 2, 2019, (ECF No. 20 1), against Defendants Galan and Guzman for deliberate indifference to serious 21 medical needs for failing to provide heart medication, and against Defendants 22 Guzman and Sanchez for retaliation; 23 2. All other claims and Defendants Flores and Baraona are dismissed from this action 24 by operation of law pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i); 25 and 26 /// 27 /// 28 /// 1 3. The Clerk of the Court is directed to terminate Defendants Flores and Baraona on 2 the docket. 3 IT IS SO ORDERED. 4 5 Dated: October 30, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28