1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID GARRIS, Case No. 1:25-cv-00604-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 CLAIMS1 14 M. VELASQUEZ, et al., (Doc. No. 12) 15 Defendants. ORDER DIRECTING CLERK TO CORRECT 16 CAPTION

17 18 Plaintiff David Garris, a state prisoner proceeding pro se, and in forma pauperis in this 19 civil rights action under

. (Doc. No. 1, “Complaint”). On July 30, 2025, the 20 Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found that it stated a 21 cognizable Eighth Amendment failure to protect claim against Defendants M. Velasquez, R. 22 Duran, and Funk in their individual capacities only. (Doc. No. 11). The Court found that Plaintiff 23 failed to state a claim against, Defendants Hall, Delima, and Macomber and the Complaint failed 24 to state a conspiracy claim or a claim under the Equal Protection Clause . (Id. at 6-10). 25 The Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; 26 (2) file a notice under Federal Rule of Civil Procedure 41(a)(1) and Rule 15 that he is willing to 27 1 This matter was referred to the undersigned pursuant to

(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 stand on his complaint as screened and proceed only on his Eighth Amendment claim against 2 Defendants M. Velasquez, R. Duran, and Funk in their individual capacities only; or (3) stand on 3 his complaint subject to the undersigned issuing Findings and Recommendations to dismiss the 4 claims not deemed cognizable. (Id. at 10-12). 5 On August 18, 2025, Plaintiff filed a notice electing “to stand on the complaint as 6 screened and proceed only on those claims the court deems cognizable, effectively dismissing 7 Defendants J. Macomber, T. Hall, and M. Delima without prejudice under Federal Rule of Civil 8 Procedure 41(a)(1) and Rule 15.” (Doc. No. 12, “Notice”). Plaintiff may voluntarily dismiss any 9 defendant or claim without a court order by filing a notice of dismissal before the opposing party 10 answers the complaint or moves for summary judgment. Fed. R. Civ. P. 41 (a)(1)(A)(i). Here, no 11 party has answered or moved for summary judgment. (See docket). Further, the Ninth Circuit 12 recognizes a party has an absolute right prior to an answer or motion for summary judgment to 13 dismiss fewer than all named defendants or claims without a court order. Pedrina v. Chun, 987

, 609-10 (9th Cir. 1993). Alternatively, the Court construes Plaintiff’s Notice as a 15 motion to amend the Complaint under Federal Rule of Civil Procedure 15(a) to withdraw his 16 conspiracy claim and claim under the Equal Protection Clause. Hells Canyon Pres. Council v. 17 U.S. Forest Serv.,

(9th Cir. 2005) (Rule 15(a) “is appropriate mechanism” 18 when party is eliminating an issue or one or more claims but not completely dismissing a 19 defendant). 20 In accordance with Plaintiff’s Notice, Defendants Hall, Delima, and Macomber and 21 Plaintiff’s conspiracy and claims under the Equal Protection Clause are dismissed by operation of 22 law pursuant to Rule 41 and 15. Plaintiff’s Complaint will proceed only on his Eighth 23 Amendment failure to protect claim against Defendants M. Velasquez, R. Duran, and Funk in 24 their individual capacities. (See Doc. No. 1). The Court will direct service of process on 25 Defendants M. Velasquez, R. Duran, and Funk by separate order. 26 Accordingly, it is ORDERED: 27 1. In accordance with Plaintiff’s Notice, Defendants Hall, Delima, and Macomber and 28 Plaintiff’s conspiracy and claims under the Equal Protection Clause are dismissed by 1 operation of law pursuant to Federal Rule of Civil Procedure 41 and 15. 2 2. The Clerk of Court shall correct the docket to reflect Plaintiff’s voluntary dismissal of 3 Defendants Hall, Delima, and Macomber. 4 > | Dated: _ August 19,2025 Mile. □□□ foareA Zacks 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28