(PC) Ritter v. McCabe ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD RITTER, Case No. 1:19-cv-00324-DAD-HBK 12 Plaintiff, ORDER DENYING DEFENDANTS’ MOTION FOR DE NOVO REVIEW AND 13 v. CONSTRUING PLAINTIFF’S MOTION TO DENY AS OPPOSITION 14 CONALL MCCABE, ET. AL., (Doc. Nos. 33, 34) 15 Defendants. 16 17 Pending before the court is Defendant’s Motion for Ruling by District Judge filed August 18 4, 2021. (Doc. No. 33). Defendants seek de novo review of the former-magistrate judge’s second 19 screening order issued on October 21, 2019. (Id. at 1). Defendants argue that even though 20 Plaintiff consented to the dismissal of certain defendants and claims following the second 21 screening order, the dismissal of these defendants and claims exceeded the magistrate judge’s 22 authority under Williams v. King, 875 F.3d 500 (9th Cir. 2017), because Defendants had not 23 consented to the magistrate judge. (Id. at 1-2). Plaintiff filed a pleading titled “Request to Judge 24 to Deny Motion” which the Court construes as an opposition to Defendants’ motion. (Doc. No. 25 34). Referring to Defendants’ motions for enlargements of time and the amount of time this case 26 has been pending, Plaintiff requests that the court deny Defendants’ motion for de novo review so 27 that his case may proceed. (Id. at 1). 28 A review of the docket reveals Plaintiff initiated this action proceeding pro se by filing a 1 prisoner civil rights action under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff proceeds on his First 2 Amended Complaint as screened. (Doc. No. 9, “FAC”). The Defendants who were served 3 answered the FAC on March 24, 2020. (Doc. No. 24). A discovery and scheduling order issued 4 on March 25, 2020. (Doc. No. 25). The Court granted Defendants’ second motion to extend the 5 discovery and dispositive deadlines on May 20, 2020. (Doc. No. 32). Pending before the Court 6 is Defendants’ third motion to further extend certain deadlines in the discovery and scheduling 7 order. (Doc. No. 35). 8 This action involves Plaintiff’s Eighth Amendment deliberate indifference to a serious 9 medical condition claim. On July 8, 2019, the former-assigned magistrate judge issued a 10 screening order on Plaintiff’s initial complaint and permitted Plaintiff leave to file an amended 11 complaint if he wished to do so. (Doc. No. 8 at 1, 10). The initial screening order determined the 12 complaint stated only a medical deliberate indifference claim against Defendant Nguyen. (Id. at 13 2). Following the first screening order, Plaintiff filed the FAC naming three defendants: Dr. 14 Mccabe, Dr. Sill, and Dr. Nguyen. (Doc. No. 9). On October 21, 2019, the former-assigned 15 magistrate judge issued a second screening order, noting the FAC was substantially similar to 16 Plaintiff’s initial complaint, except Plaintiff elected to remove Ravijot as a Defendant. (Doc. No. 17 12 at 2, citing Doc. No. 9 at 1 and noting Plaintiff struck through Ravijot’s name). The second 18 screening order found the FAC stated Eighth Amendment medical deliberate indifference claims 19 as to Defendants McCabe and Nguyen only but no claim against Defendant Sill. (Id. at 2). The 20 former-assigned magistrate judge gave Plaintiff an opportunity to notify the court whether he 21 wanted to proceed only on claims sanctioned by the court and “voluntarily dismiss the other 22 claims and defendants” or notify the court whether he wished to stand by the first amended 23 complaint, subject to the recommendation of a dismissal of the claims and defendants consistent 24 with the order. (Id. at 3). On October 28, 2019, Plaintiff filed a pleading titled “Notify the Court 25 that Willing to Proceed Only on Claims Sanctioned By this Order and Dismiss Other Claims” in 26 which Plaintiff unequivocally stated that he “wished to proceed only on the claims sanctioned by 27 the order written on October 21, 2019 and will voluntarily dismiss other claims.” (Doc. No. 13). 28 Consistent with Plaintiff’s notice of voluntary dismissal of claims against Defendants Sill and 1 | Ravijot, the former-assigned magistrate judge directed the clerk to remove Defendants Sill and 2 | Ravijot from the docket. (Doc. No. 17). The docket reflects both parties’ termination effective 3 || November 20, 2019. Neither Sill nor Ravijot were served in this action and no judgment was 4 | entered. 5 At the outset, Defendants’ motion for de novo review is filed nearly two years after the 6 | relevant screening order was issued and more than a year and a half after Defendants answered 7 | the operative complaint. (See docket). Further, not only are the facts in the instant case 8 | distinguishable from Williams v. King, 875 F.3d 500 (9th Cir. 2017), Rule 41(a) of the Federal 9 | Rules of Civil Procedure allows a party to dismiss some or all of the defendants or claims in an 10 action through a Rule 41(a) notice as aright. Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993) 11 | (agreeing with the “First, Third, Fifth, and Eighth circuits that Rule 41(a)(1) allows a plaintiff to 12 | dismiss without a court order any defendant who has yet to serve an answer or a motion for 13 | summary judgment” without dismissing other defendants or the entirety of the action); see also 14 | Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001). Thus, prior 15 | to any Defendant answering or moving for summary judgment, Plaintiff had the absolute right to 16 | dismiss his claims against Defendants Sill and Ravijot without prejudice without a court order. 17 | Plaintiffs filing of the notice itself has the effect of terminating these Defendants, and the Court 18 | no longer has jurisdiction over the claims against those Defendants. Jd. 19 Accordingly, it is ORDERED: 20 1. Defendants’ motion for de novo review (Doc. No. 33) is DENIED. 21 2. The Clerk of Court shall terminate Plaintiff's motion (Doc. No. 34), construed by the 22 | Court as Plaintiff’s opposition to Defendants’ motion. 23 24 Dated: _ October 20, 2021 oe Uh. Sareh Back 5 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28