(PC) Bierman v. Nurse 1 ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BIERMAN, Case No. 1:20-cv-01777-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 NURSE 1, ORDER DIRECTING CLERK TO REVISE 15 Defendant. DOCKET TO REFLECT ONLY NAMED DEFENDANT 16 (Doc. No. 17) 17 18 19 Plaintiff James Bierman, a prisoner, is proceeding pro se and in forma pauperis in this 20 action filed under 42 U.S.C. § 1983. On April 5, 2023, this Court issued a screening order on 21 Plaintiff’s Complaint. As discussed at length in this Court’s April 5, 2023 Screening Order, the 22 Complaint states a cognizable Fourteenth Amendment1 claim against Nurse 1 for deliberate 23 indifference to Plaintiff’s medical condition but no other claim. (Doc. No. 16 at 4-7). 24 Specifically, the Court found the Complaint did not state any cognizable claim against Nurse 2 or 25 the medical staffing supervisor at the Kern County Lerdo Detention Facility. (Id.). The 26 Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a 27 28 1 Plaintiff was a pretrial detainee at the time of the events in the complaint. 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 Complaint subject to the undersigned issuing Findings 3 | and Recommendations to dismiss the defendants and claims not cognizable. (Doc. No. 16 at 7-8). 4 | On April 20, 2023, Plaintiff filed a pleading, dated April 13, 2023, signed to under penalty of 5 | perjury stating that he desires “to stand on his current complaint as screened” “and proceed only 6 | onhis 14th Amendment deliberate indifference claim to his medical condition against Nurse 1.” 7 | (Doc. No. 17 at 5).” 8 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 9 | notice of dismissal before the opposing party answers the complaint or moves for summary 10 | judgment. Fed. R. Civ. P. 41 (a)(1)(A)G). Here, no party has answered or moved for summary 11 | judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 12 | to an answer or motion for summary judgment to dismiss fewer than all named defendants or 13 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). In 14 | accordance with Plaintiffs notice, Nurse 2 and medical staffing supervisor at the Kern County 15 | Lerdo Detention Facility are dismissed without prejudice by operation of law. Fed. R. Civ. P. 16 | 41(a)(1(A)q@). Plaintiff's Complaint will proceed on Plaintiff's Fourteenth Amendment claim 17 | against Nurse | for deliberate indifference to Plaintiff's medical condition. (See Doc. Nos. 1, 16). 18 | The Court will direct service of process on Defendant Nurse | by separate order. 19 Accordingly, it is ORDERED: 20 The Clerk of Court shall correct the docket to reflect Plaintiff's notice of voluntary 21 | dismissal under Rule 41(a)(1) of Defendants Nurse 2 and the Kern County Lerdo Detention 22 | Facility. *3 | Dated: __April 24, 2023 Mile. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 | * Plaintiff filed an amended complaint, but it is devoid of any allegations other than the above statement in the “Relief” portion that Plaintiff is electing “option #2.” The Court thus construes the pleading a Rule 41 28 | notice to dismiss the claims and defendants deemed not cognizable in the screening order.