(PC) Johnson v. Frauenheim

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA LACEDRIC WILLIAM JOHNSON, Case No. 1:18-cv-01477-AWI-BAM (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S NOTICE TO PROCEED ON COGNIZABLE 13 v. CLAIMS SCOTT FRAUENHEIM, et al., (ECF Nos. 1, 8) 15 Defendants.

17 Plaintiff LaCedric William Johnson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

19 On October 17, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff stated the following cognizable claims: (1) for excessive force against Defendants Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad, (2) for violation of Plaintiff’s First Amendment right to free exercise of religion against Defendants Salas, Bejinez, Trinidad, and Deshazo, (3) for unconstitutional conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, and Benavides, (4) for deliberate indifference to serious medical needs against Defendants Benavides, Bejinez, Deshazo, Hoggard, and Trinidad, and (5) for failure to intervene against Espinoza, Luna, and Newton. (ECF No. 8.) The Court also found that Plaintiff failed to state any other cognizable claims against any other defendant. (Id.) The Court ordered Plaintiff to either file a first amended complaint or notify the Court in writing of his willingness to proceed only on the claims found to be cognizable by the Court, which would result in Plaintiff’s voluntary dismissal of Defendants Frauenheim, George, Hansen, Liebold, Sharp, Erickson, and Ramirez, and all other claims, per Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Id. at 34-35.)

5 On October 28, 2019, Plaintiff notified the Court of his willingness to proceed only on the cognizable claims identified by the Court. (ECF No. 11.) As explained in the Court’s October 17, 2019 screening order, this notification also results in Plaintiff’s voluntary dismissal of Defendants Frauenheim, George, Hansen, Liebold, Sharp, Erickson, and Ramirez, and all other claims pursuant to Rule 41(a)(1)(A)(i). (ECF No. 8, at 34-35.)

10 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “A plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice.”

16 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (internal citations omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt., 193 F.3d at 1078.

20 No Defendant has been served in this action and no defendant has filed an answer or motion for summary judgment.

22 Accordingly, it is HEREBY ORDERED that: 23 1. This action will proceed on Plaintiff’s complaint, filed on October 26, 2018, (ECF 24 No. 1): (1) for excessive force against Defendants Santos, Leon, Benavides, Hill, 25 Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad, (2) for violation of Plaintiff’s 26 First Amendment right to free exercise of religion against Defendants Salas, 27 Bejinez, Trinidad, and Deshazo, (3) for unconstitutional conditions of confinement 28 against Defendants Deshazo, Bejinez, Trinidad, and Benavides, (4) for deliberate 1 indifference to serious medical needs against Defendants Benavides, Bejinez, 2 Deshazo, Hoggard, and Trinidad, and (5) for failure to intervene against Espinoza, 3 Luna, and Newton; 4 2. All other claims and Defendants Frauenheim, George, Hansen, Liebold, Sharp, 5 Erickson, and Ramirez are dismissed from this action by operation of law pursuant 6 to Federal Rule of Civil Procedure 41(a)(1)(A)(i); and 7 3. The Clerk of the Court is directed to terminate Defendants Frauenheim, George, 8 Hansen, Liebold, Sharp, Erickson, and Ramirez on the docket.

IT IS SO ORDERED.

11 Dated: October 30, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE