(PC) Howard v. Shirley

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KARLIS RUBEN AUGUSTUS Case No. 1:24-cv-00387-HBK (PC) HOWARD, 12 ORDER NOTING VOLUNTARY Plaintiff, DISMISSAL UNDER FED. R. CIV. P. 41(a)(1)(A)(i) AND FED. R. CIV. P. 15(a) OF v. 14 CERTAIN CLAIMS AND DEFENDANTS HEATHER SHIRLEY, et al., Defendants. (Doc. No. 11) 21 Plaintiff Karlis Ruben Augustus Howard, a state prisoner, is proceeding pro se and in forma pauperis in this action filed under 42 U.S.C. § 1983. On August 9, 2024, this Court issued a screening order on Plaintiff’s First Amended Complaint (“FAC”). (Doc. No. 10). As discussed in the Court’s screening order, the Court found the FAC stated cognizable Eighth Amendment conditions of confinement claims against Defendants Shirley, Cronjager, and DeGough, and state law claims against the same three individuals for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, but failed to state any other cognizable claims. (Id. at 1-2). Specifically, the Court found the FAC does not state any claim against Defendants California Department of Corrections and Rehabilitation (“CDCR”), City of Wasco, County of Kern, and Wasco State Prison. (See generally id). The Screening Order afforded Plaintiff the opportunity to either (1) file a notice under Rule 41 and Federal Rule of Civil Procedure 15 that he is willing to proceed only on the claims the court found cognizable in its screening order; or (2) stand on his FAC subject to the undersigned issuing Findings and Recommendations to dismiss the claims not deemed cognizable. (Id. at 13-15).

7 On August 22, 2024, Plaintiff filed a “Notice Under Rule 41 and Rule 15(a).” (Doc. No. 11). In his signed and dated Notice, Plaintiff states: 9 In response to this great and honorable Court’s Order on August 9, 2024, The Plaintiff, Karlis Ruben August Howard contends he 10 intends to stand on his FAC as screened herein and proceed only on his Eighth Amendment conditions of confinement, and state law 11 negligence, IIE, and NIED claims against Defendants DeGough, Shirley and Cronjager, thereby voluntarily dismissing Defendants 12 CDCR, City of Wasco, County of Kern, and Wasco State Prison and the remaining claims the Court deemed not cognizable. (Doc. No. 11 at 3).

A plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a notice of dismissal before the opposing party answers the complaint or moves for summary judgment. Fed. R. Civ. P. 41 (a)(1)(A)(i). Here, no party has answered or moved for summary judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior to an answer or motion for summary judgment to dismiss fewer than all named defendants or claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993).

Alternatively, Plaintiff’s Notice is properly construed as a motion to amend the FAC under Federal Rule of Civil Procedure 15(a). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 22 683, 687 (9th Cir. 2005) (Rule 15(a) “is appropriate mechanism” when party is eliminating an issue or one or more claims but not completely dismissing a defendant).

In accordance with Plaintiff’s Notice, Plaintiff’s FAC will proceed only on his Eighth Amendment conditions of confinement claims against Defendants Shirley, Cronjager, and DeGough, and state law claims against the same three individuals for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress only. (See Doc. No. 11). Defendants CDCR, City of Wasco, County of Kern, and Wasco State Prison are voluntarily | dismissed under Rule 15 and any other claims deemed not cognizable are deemed withdrawn | under Rule 15.

4 Accordingly, it is ORDERED: 5 1. The Court recognizes Plaintiff's voluntary dismissal of Defendants California 6 Department of Corrections and Rehabilitation, City of Wasco, County of Kern, and 7 Wasco State Prison.

8 2. The Court will direct service upon Defendants Shirley, Cronjager, and DeGough by 9 separate order. | Dated: _ August 26, 2024 Mihaw. □□□ foareh Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE