(PC) Gomez v. Gonzalez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDY GOMEZ, Case No. 1:22-cv-00977-HBK (PC) 12 Plaintiff, ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 13 v. 41(a)(1)(A)(i) AND FED. R. CIV. P. 15(a) OF CERTAIN CLAIMS 14 GONZALEZ and CHARLES, (Doc. No. 12) 15 Defendants. 16 17 Plaintiff Andy Gomez, a prisoner, is proceeding pro se and in forma pauperis in this 18 action filed under 42 U.S.C. § 1983. On June 23, 2023, this Court issued a screening order on 19 Plaintiff’s Complaint. As discussed at length in this Court’s June 23, 2023 Screening Order, the 20 Complaint states a cognizable Eighth Amendment failure to protect claim against Defendants 21 Gomez and Charles in their individual capacities but no other claim. (Doc. No. 7 at 4-6). The 22 Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a 23 notice under Rule 41 that he is willing to proceed only on the claims the court found cognizable 24 in its screening order; or (3) stand on his Complaint subject to the undersigned issuing Findings 25 and Recommendations to dismiss the defendants and claims not cognizable. (Id. at 7). After 26 granting Plaintiff two extensions of time to respond to the June 23, 2023 Screening Order, on 27 September 28, 2023, Plaintiff filed a pleading, signed and dated September 25, 2023, titled 28 “Plaintiff’s Intent to Stand on Current Complaint as Screened.” (Doc. No. 12). In the pleading 1 | Plaintiff states he “intend[s] to stand on the current complaint as screened and proceed only on his 2 | Eighth Amendment failure to protect claim against both defendants Gonzalez and Charles in their 3 | individual capacities, thereby voluntarily dismissing the Fourteenth Amendment and official 4 | capacity claims....” (/d.). 5 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 6 | notice of dismissal before the opposing party answers the complaint or moves for summary 7 | judgment. Fed. R. Civ. P. 41 (a)(1)(A)G). Here, no party has answered or moved for summary 8 | judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 9 | to an answer or motion for summary judgment to dismiss fewer than all named defendants or 10 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). 11 | Alternatively, the Court construes Plaintiff's motion to dismiss Plaintiff's Fourteenth Amendment 12 | and official capacity claims against Defendants Gonzalez and Charles as a motion to amend the 13 || Complaint under Federal Rule of Civil Procedure 15(a). Hells Canyon Pres. Council v. U.S. 14 | Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (Rule 15(a) “is appropriate mechanism” when 15 | party is eliminating an issue or one or more claims but not completely dismissing a defendant). 16 | In accordance with Plaintiffs notice, his Fourteenth Amendment and official capacity claims are 17 || dismissed without prejudice by operation of law. Plaintiff's Complaint will proceed on his Eighth 18 || Amendment failure to protect claim against Defendants Gomez and Charles. (See Doc. Nos. 1, 19 | 7). The Court will direct service of process on Defendants Gomez and Charles by separate order. 20 Accordingly, it is ORDERED: 21 Plaintiff's Fourteenth Amendment and official capacity claims against Defendants Gomez 22 | and Charles are dismissed without prejudice. | Dated: _ September 29, 2023 Wiha. □□ fares Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28