Cuong Huy Dao v. M. Bravo, et al.

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CUONG HUY DAO, Case No. 1:25-cv-00970-HBK (PC) 12 Plaintiff, ORDER NOTING PLAINTIFF’S VOLUNTARY DISMISSAL UNDER FED. R. 13 v. CIV. P. 41(a)(1)(A)(i) AND 15(a) OF CERTAIN CLAIMS AND DEFENDANTS M. BRAVO, et al., 15 Defendants.

18 On September 8, 2025, Plaintiff Cuong Huy Dao, a state prisoner proceeding pro se and in forma pauperis in this civil rights action, filed a “Notice to Voluntarily Dismiss Claims Deemed Not Cognizable” (Doc. No. 9, “Notice”) in response to the Court’s August 22, 2025 Screening Order (Doc. No. 8, “Screening Order”). The Screening Order found Plaintiff’s civil rights complaint filed on August 6, 2025 (Doc. No. 1, “Complaint”) stated cognizable Eighth Amendment excessive use of force claims against Defendants M. Bravo, J. Rivera, J. Perez, A.

24 Heredia, Devila, Medina, A. Gutierrez, M. Lopez, Rodrigo, and two Unidentified Correctional Officers , and cognizable Eighth Amendment medical deliberate indifference claims against Defendants LVN Reyes, RN Callejo, and Dr. Kongara but no other claim. (Doc. No. 8 at 12).

27 Specifically, the Court found the Complaint did not state cognizable conspiracy claims or equal protection claims against any of the named Defendants, and did not state an Eighth Amendment condition of confinement against Defendant J. Medina or any other named Defendant. ( Doc. No. 8 at 8-11.) The Screening Order directed Plaintiff to elect one of three options: (1) file a first amended complaint; (2) file a Notice under Federal Rules of Civil Procedure 41 and 15 stating his intent to stand on his Complaint as screened subject to the voluntary dismissal of the defendant(s) and other claim(s) deemed not cognizable; or (3) stand on the Complaint subject to Court recommending dismissal of defendant(s) and claim(s) deemed not cognizable to the district court.

7 (Id. at 12-13). The Notice that is dated and signed by Plaintiff in relevant part states: 8 Plaintiff intends to stand on his current complaint as screened herein and proceed only on his 8th Amendment excessive use of force claim 9 against Defendant M. Bravo, H. Rivera, J. Perez, A. Heredia, Devila, Medina, A. Guiter[r]ez, M. Lopez, Rodrigo, and Unidentified 10 Correctional Officers, and his 8th Amendment medical indifference claim against LVN. Reyes, R.N. Callejo, and Dr. Kongara.

12 (Doc. No. 9 at 2).

13 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. Fed. R. Civ. P. 41 (a)(1)(A)(i). Here, no party has answered or moved for summary judgment. (See docket).

16 Further, the Ninth Circuit recognizes a party has an absolute right prior to answer or 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, 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 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).

23 In accordance with Plaintiff’s Notice, Plaintiff’s conspiracy, equal protection, and conditions of confinement claims are dismissed without prejudice by operation of law. (See Doc.

25 No. 9); see also Fed. R. Civ. P. 41(a)(1)(A)(i); Fed. R. Civ. P. 15(a). The Court will direct service of the Complaint on Defendants M. Bravo, J. Rivera, J. Perez, A. Heredia, Devila, Medina, A. Gutierrez, M. Lopez, Rodrigo, LVN Reyes, RN Callejo and Dr. Kongara by separate order.

1 Accordingly, it is ORDERED: 2 1. The Court recognizes Plaintiff's voluntary dismissal of Plaintiff's conspiracy, equal 3 protection and condition of confinement claims from his operative Complaint.

4 2. The Court will direct service upon Defendants M. Bravo, J. Rivera, J. Perez, A.

5 Heredia, Devila, Medina, A. Gutierrez, M. Lopez, Rodrigo, LVN Reyes, RN Callejo 6 and Dr. Kongara by separate order. | Dated: _ September 15, 2025 Mile. Th. Doareh Zacks 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE