(PC) Etuate Sekona v. Zepp ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ETUATE SEKONA, Case No. 1:18-cv-01065-LJO-BAM (PC) 10 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE TO PROCEED ON COGNIZABLE 11 v. CLAIM(S) 12 ZEPP, et al., (ECF No. 25) 13 Defendants. 14 15 Plaintiff Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 17 On October 10, 2019, the Court screened Plaintiff’s first amended complaint and found 18 that Plaintiff stated a cognizable claim against Defendant Dr. Zepp for deliberate indifference to 19 serious medical needs in violation of the Eighth Amendment arising out of the alleged delay in 20 referring Plaintiff to a urology specialist, scheduling follow-up treatment with the urology 21 specialist after surgery, and failing to provide necessary medications as prescribed by the 22 specialist, but failed to state any other cognizable claims against any other defendant. The Court 23 ordered Plaintiff to either file a second amended complaint or notify the Court in writing of his 24 willingness to proceed only on the deliberate indifference claim against Defendant Zepp, which 25 would result in Plaintiff’s voluntary dismissal of all other claims and Defendants, per Federal 26 Rule of Civil Procedure 41(a)(1)(i). (ECF No. 24.) 27 On November 4, 2019, Plaintiff notified the Court of his willingness to proceed only on 28 the cognizable claim against Defendant Dr. Zepp identified by the Court. (ECF No. 25.) As 1 explained in the Court’s screening order, this notification also results in Plaintiff’s voluntary 2 dismissal of all other claims and defendants pursuant to Rule 41(a). (ECF No. 24, p. 9.) 3 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his 4 action prior to service by the defendant of an answer or a motion for summary judgment.” 5 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 6 (quotation and citation omitted). “A plaintiff may dismiss some or all of the defendants, or some 7 or all of his claims, through a Rule 41(a)(1) notice. The filing of a notice of voluntary dismissal 8 with the court automatically terminates the action as to the defendants who are the subjects of the 9 notice.” Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (internal citations 10 omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the 11 parties are left as though no action had been brought, the defendant can’t complain, and the 12 district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt., 193 F.3d at 13 1078. 14 No defendants have been served in this action and no defendant has filed an answer or 15 motion for summary judgment. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. This action will proceed on Plaintiff’s first amended complaint, filed September 20, 18 2019, (ECF No. 23), against Defendant Zepp for deliberate indifference to serious 19 medical needs in violation of the Eighth Amendment; 20 2. All other claims and defendants are dismissed from this action by operation of law 21 pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i); and 22 3. The Clerk of the Court is DIRECTED to terminate all other defendants on the docket. 23 IT IS SO ORDERED. 24 25 Dated: November 6, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28