(PC) Weston v. Dr. Joanna

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DE’ANDRE IVISON WESTON, Case No. 1:24-cv-00638-KES-HBK (PC) 12 Plaintiff, ORDER NOTING VOLUNTARY DISMISSAL OF CERTAIN CLAIMS 13 v. (Doc. No. 15) DR. JOANNA, 15 Defendant.

17 Plaintiff De’Andre Ivison Weston, a pretrial detainee, is proceeding pro se and in forma pauperis on his Complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). On November 7, 2024, the Court issued a screening order on Plaintiff’s Complaint. (Doc. No. 14). As discussed at length in the Court’s November 7, 2024 Screening Order, the Complaint states a cognizable Fourteenth Amendment deliberate medical indifference claim against Defendant Dr. Joanna for failure to refer Plaintiff to an outside dental specialist but fails to state a claim on any other basis.

23 (Doc. No. 14 at 7-8). The Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a notice under Rule 41 and Rule 15(a) that he is willing to proceed only on the claims the court found cognizable in its screening order; or (3) stand on his Complaint subject to the undersigned issuing Findings and Recommendations to dismiss the defendants and claims not cognizable. (Id. at 9). On November 21, 2024, Plaintiff filed a pleading that was signed and dated on November 14, 2024, stating he “intend[s] to proceed on [his] 14th | Amendment deliberate indifference claim against Defendant Dr. Joanna based on her delay in | referring [him] to outside care, thereby voluntarily dismissing any other claims not cognizable.”

3 | (Doc. No. 15).

4 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).

10 | Alternatively, the Court construes Plaintiffs notice to dismiss any other claims against Defendant 11 Dr. Joanna as a motion to amend the Complaint under Federal Rule of Civil Procedure 15(a).

12 | Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 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, his other claims | against Dr. Joanna are dismissed without prejudice by operation of law. Plaintiff's Complaint | will proceed on his Fourteenth Amendment deliberate indifference claim against Defendant Dr. | Joanna. (See Doc. Nos. 1, 14). The Court will direct service of process on Defendant Dr. Joanna | by separate order.

19 Accordingly, it is ORDERED: 20 Plaintiff's Complaint proceeds only on his Fourteenth Amendment deliberate medical | indifference claim against Defendant Dr. Joanna based on her delay in referring Plaintiff for || outside medical care and no other claim. | Dated: _ December 2, 2024 Wiha. Th. fareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE