(PC) John E. Mitchell v. Baeza

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN EDWARD MITCHELL, Case No. 1:20-cv-00857-HBK (PC) 12 Plaintiff, ORDER DENYING AS MOOT PLAINTIFF’S REQUEST FOR STAY 13 v. H. BAEZA, et al., (Doc. No. 39) 15 Defendants. ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 16 41(a)(1)(A)(i) AND FED. R. CIV. P. 15(a) OF CERTAIN CLAIMS (Doc. No. 40) ORDER DIRECTING CLERK TO REVISE DOCKET TO REFLECT ONLY NAMED DEFENDANTS 21 Plaintiff John Edward Mitchell, a state prisoner, is proceeding pro se in this action filed under 42 U.S.C. § 1983. On January 18, 2024, this Court issued a screening order on Plaintiff’s Second Amended Complaint (“SAC”). (Doc. No. 36). As discussed in the Court’s screening order, the SAC states cognizable (1) First Amendment retaliation claims against Defendants Baeza and Gutierrez; (2) Eighth Amendment Failure to Protect claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang, (3) Intentional Infliction of Emotional Distress claims against Defendants Baeza and Gutierrez, (4) Negligence claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, Parra, John Doe #1 and Vang, (5) Bane Act claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, and inmate McDuffy, and (6) civil conspiracy claims against Defendants Baeza and Gutierrez. (Id. at 29). 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 SAC subject to the undersigned issuing Findings and Recommendations to dismiss the claims not deemed cognizable. (Id. at 30).

7 On February 2, 2024, Plaintiff filed a Notice to Proceed on Cognizable Claims. (Doc. No. 40). In his signed and dated Notice, Plaintiff states, “I choose option one. I intend to proceed only on the above six claims deemed cognizable.” (Id. at 1).

10 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).

16 Alternatively, the Court construes Plaintiff’s Notice as a motion to amend the Complaint under Federal Rule of Civil Procedure 15(a). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 18 683, 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).

20 In accordance with Plaintiff’s Notice, Plaintiff’s SAC will proceed only on his (1) First Amendment retaliation claims against Defendants Baeza and Gutierrez; (2) Eighth Amendment Failure to Protect claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang, (3) Intentional Infliction of Emotional Distress claims against Defendants Baeza and Gutierrez, (4) Negligence claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, Parra, John Doe #1 and Vang, (5) Bane Act claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, and inmate McDuffy, and (6) civil conspiracy claims against Defendants Baeza and Gutierrez. (See Doc. No. 30). Plaintiff’s remaining claims not deemed cognizable are dismissed under Rule 41.

1 Plaintiff also filed a Request for Stay on February 2, 2024. (Doc. No. 39). The Court | previously denied Plaintiff's Request for Stay on January 24, 2024 but granted him an extension | of time to respond to the Court’s January 18, 2024 Order. (Doc. No. 38). Because Plaintiff | timely responded to the Screening Order, Plaintiff’s request for a stay is moot. Furthermore, no | stay is required at this stage of the proceedings as Plaintiff is not under any court-ordered | deadline.

7 Accordingly, it is ORDERED: 8 1. The Clerk of Court shall correct the docket to add Defendants Vang and McDuffy as 9 named Defendants and terminate Defendants Moreno, Bass, Huewe, and Vargas to 10 reflect Plaintiff's notice of voluntary dismissal under Rule 41(a)(1) of these same 11 Defendants.

12 2. Plaintiff's Request for Stay filed February 2, 2024 (Doc. No. 39) is DENIED as moot.

13 3. The Court will direct service upon Defendants Baeza, Gutierrez, Valencia-Mendoza, 14 Parra, Vang, and McDuffy by separate order. '© | Dated: _ February 13, 2024 Mile. Wh. foareh Zaskth 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE