(PC) Davis, Sr. v. Cloak ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EARL DAVIS SR., Case No. 1:22-cv-01632-JLT-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 E. CLOAK, S. REED, and R. VINCENT, ORDER DIRECTING CLERK TO REVISE 15 Defendants. DOCKET TO REFLECT ONLY NAMED DEFENDANTS 16 (Doc. No. 30) 17 18 19 Plaintiff Earl Davis Sr., a prisoner, is proceeding pro se and in forma pauperis in this 20 action filed under 42 U.S.C. § 1983. On June 6, 2023, this Court issued a screening order on 21 Plaintiff’s First Amended Complaint. As discussed at length in this Court’s June 6, 2023 22 Screening Order, the Complaint states cognizable First Amendment interference with mail and 23 retaliation claims against Defendants E. Cloak, S. Reed, and R. Vincent, but no other claims. 24 (See Doc. No. 26). The Screening Order afforded Plaintiff the opportunity to (1) file an amended 25 complaint; (2) file a notice under Rule 41 that he is willing to proceed only on the claims the 26 court found cognizable in its screening order; or (3) stand on his Complaint subject to the 27 undersigned issuing Findings and Recommendations to dismiss the defendants and claims not 28 cognizable. (Id. at 17-18). On July 24, 2023, Plaintiff filed a pleading, dated July 18, 2023, 1 | signed to under penalty of perjury stating that he desires “to stand on current FAC as screened 2 | herein and proceeded [sic] only on his first amendment interference with mail and retaliation 3 | claims against defendants Cloak, Reed, and Vincent, therby [sic] dissmissing [sic] voluntarily □ □ . 4 | defendants Whitley, Eaton, Khan, Flores, Smith, Berry, Markel, Hill, Nieves, Rojas, and Mosley 5 | and any other claim the court deemed not cognizable.” (Doc. No. 30 at 1). 6 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 7 | notice of dismissal before the opposing party answers the complaint or moves for summary 8 | judgment. Fed. R. Civ. P. 41 (a)(1)(A)G). Here, no party has answered or moved for summary 9 | judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 10 | to an answer or motion for summary judgment to dismiss fewer than all named defendants or 11 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). In 12 || accordance with Plaintiffs notice, defendants Whitley, Eaton, Khan, Flores, Smith, Berry, 13 | Markel, Hill, Nieves, R. Cloak, Valesco, White, ! Rojas, and Mosley are dismissed without 14 || prejudice by operation of law. Fed. R. Civ. P. 41(a)(1)(A)().. The FAC will proceed on 15 | Plaintiffs First Amendment claim interference with mail and retaliation claims against 16 | Defendants E. Cloak. S. Reed, and R. Vincent. (See Doc. No. 14). The Court will direct service 17 | of process on Defendant E. Cloak. S. Reed, and R. Vincent by separate order. 18 Accordingly, it is ORDERED: 19 The Clerk of Court shall correct the docket to reflect Plaintiff's notice of voluntary 20 | dismissal under Rule 41(a)(1) of Defendants Whitley, Eaton, Khan, Flores, Smith, Berry, Markel, 21 | Hill, Nieves, R. Cloak, Valesco, White, Rojas, and Mosley. 22 *3 | Dated: _ July 25, 2023 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 ' Although not mentioned in Plaintiff’s Notice, Defendants R. Cloak, Valesco, and White, listed in Plaintiff’s Initial 283 | Complaint and omitted from the FAC, are likewise dismissed without prejudice.