(PC) Howell v. Vera ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No. 1:22-cv-00277-HBK (PC) 12 Plaintiff, ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 13 v. 41(a)(1)(A)(i) OF CERTAIN DEFENDANTS AND CLAIMS 14 N. VERA, I. MEDINA, I. CEBALLOS, J.B. FUGATE, J. NAVARRO, ORDER DIRECTING CLERK TO REVISE 15 DOCKET TO REFLECT ONLY NAMED Defendant. DEFENDANT 16 (Doc. No. 12) 17 18 19 Plaintiff Kareem J. Howell, a prisoner, is proceeding pro se in this action filed under 42 20 U.S.C. § 1983. On August 16, 2023, this Court issued a screening order on Plaintiff’s first 21 amended complaint (“FAC”). (Doc. No. 10). As discussed at length in this Court’s August 16, 22 2023 Screening Order, the FAC states a cognizable First Amendment retaliation claim against 23 Defendants Vera, Medina, Ceballos, Fugate, and Navarro; a Eighth Amendment failure to protect 24 claim against Defendants Vera, Medina, Ceballos, Fugate, and Navarro; and a Eighth 25 Amendment excessive use of force claim against Defendants Vera, Medina, Ceballos, Fugate, and 26 Navarro but no other claim. (Doc. No. 10 at 4-8). Specifically, the Court found the FAC did not 27 state any cognizable claim against Defendants Randolph, J. Gallenger, and C. Gipson. (Id.). The 28 Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a 1 | notice under Rule 41 that he is willing to proceed only on the claims the court found cognizable 2 | in its screening order; or (3) stand on his FAC subject to the undersigned issuing Findings and 3 | Recommendations to dismiss the defendants and claims not cognizable. (Ud. at 8-10). On 4 | September 8, 2023, Plaintiff filed a pleading, dated September 2, 2023, signed to under penalty of 5 || perjury stating that he desires “proceed only on his first amendment retaliation claim, his Eight 6 | Amendment failure to protect claim, and his Eight Amendment excessive use of force claim. 7 | Thereby voluntarily dismissing all other Defendants Randolph, Gallenger, and Gipson who this 8 | court found no cognizable claims against.” (Doc. No. 12). 9 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 10 | notice of dismissal before the opposing party answers the complaint or moves for summary 11 judgment. Fed. R. Civ. P. 41 (a)(1)(A)G). Here, no party has answered or moved for summary 12 | judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 13 to an answer or motion for summary judgment to dismiss fewer than all named defendants or 14 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). In 15 | accordance with Plaintiff's notice, Randolph, J. Gallenger, and C. Gipson are dismissed without 16 | prejudice by operation of law. Fed. R. Civ. P. 41(a)(1)(A)G). Plaintiff's FAC will proceed on his 17 | First Amendment retaliation claim against Defendants Vera, Medina, Ceballos, Fugate, and 18 | Navarro; Eighth Amendment failure to protect claim against Defendants Vera, Medina, Ceballos, 19 | Fugate, and Navarro; and Eighth Amendment excessive use of force claim against Defendants 20 | Vera, Medina, Ceballos, Fugate. (See Doc. Nos. 7, 10). The Court will direct service of process 21 | on Defendant Defendants Vera, Medina, Ceballos, Fugate, and Navarro by separate order. 22 Accordingly, it is ORDERED: 23 The Clerk of Court shall correct the docket to reflect Plaintiff's notice of voluntary 24 | dismissal under Rule 41(a)(1) of Defendants Randolph, Gallenger, and Gipson and Defendant H. 25 || Campos who was not named in Plaintiff's First Amended Complaint. *© | Dated: _ September 11, 2023 Mihaw. □□ fares Back 27 HELENA M. BARCH-KUCHTA 38 UNITED STATES MAGISTRATE JUDGE