1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. DAVILA, Case No. 1:23-cv-00646-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 14 UNITED STATES OF AMERICA, et al., (Doc. No. 17) 15 Defendants. ORDER DIRECTING CLERK TO CORRECT 16 CAPTION 17 18 19 Plaintiff Michael Davila, a federal prisoner, initiated this action by filing a complaint 20 pursuant to

, Bivens v. Six Unknown Named Agents of the Federal Bureau of 21 Narcotics,1 and the Federal Torts Claim Act (“FTCA”) on April 27, 2023. (Doc. No. 1, 22 “Complaint”). This case was reassigned to the undersigned on July 3, 2025. (Doc. No. 9). On 23 September 9, 2025, this Court issued a screening order finding the Complaint stated the following 24 claims but no other claims: (1) FTCA claim against the United States for assault and battery 25 stemming from the actions of Defendants Borjas, Casanova, and Chapman after removing 26 Plaintiff from his cell; (2) FTCA claim against the United States for battery stemming from 27 Defendant Chapman spitting in Plaintiff’s food; (3) FTCA claim against the United States for

28 1

(1971). 1 intentional inflection of emotional distress (“IIED”) stemming from the actions of Defendant 2 Chapman while Plaintiff was in SHU; and (4) Bivens Eighth Amendment medical deliberate 3 indifference claim against Defendant Dr. Paltengni in his individual capacity for failure to treat 4 Plaintiff and/or provide him medications following Plaintiff’s return to USP Atwater after his 5 surgery for a fractured tibia. (See generally Doc. No. 12). Specifically, the Court found the 6 Complaint did not state any cognizable claims against any Defendant under

; no 7 Eighth Amendment excessive use of force claims under Bivens against any Defendant or 8 unidentified Defendant; no Eighth Amendment deliberate medical indifference claim against 9 Defendant Dr. Paltengni in his official capacity under Bivens; no Eighth Amendment deliberate 10 medical indifference claims under Bivens against any unidentified medical staff; no sexual battery 11 tort claims against any Defendant under the FTCA; and no negligence claims under FTCA 12 against any Defendant. (See id.). The Screening Order further directed Plaintiff to elect one of 13 three options: (1) file a first amended complaint; (2) file a “Notice under Federal Rules of Civil 14 Procedure 41 and 15” stating his intent to stand on his Complaint as screened subject to the 15 voluntary dismissal of the defendant(s) and other claim(s) deemed not cognizable; or (3) stand on 16 the Complaint subject to the Court recommending dismissal of defendant(s) and claim(s) deemed 17 not cognizable to the district court. (Id. at 17). 18 On November 10, 2025, Plaintiff filed a “Notice to Proceed on Cognizable Claims.” (Doc. 19 No. 17, “Notice”). The Notice, which is dated and signed by Plaintiff, states: 20 1. Plaintiff Michael A. Davila herby notifies the Court that he elects to stand alone on 21 his complaint as screened and will proceed on the following claims (1) FTCA claim 22 against the United States for assault and battery stemming from the actions of Defendant Borjas, Casanova, and Chapman after removing Plaintiff from his cell 23 (2) FTCA claim against the United States for battery stemming from Defendant Chapman spitting in Plaintiff's food; (3) FTCA claim against the United States for 24 IIED stemming from action of Defendant Chapman while Plaintiff was in SHU and (4) Bivens Eighth Amendment medical deliberate indifference claim against 25 Defendant Dr. Palteng[n]i in his individual capacity only. 26 2. Plaintiff voluntarily dismisses all other claims, and defendants deemed not 27 cognizable by the Court without prejudice. 28 (Doc. No. 17). 1 A plaintiff may voluntarily dismiss any defendant or claim without a court order by filing 2 a notice of dismissal before the opposing party answers the complaint. Fed. R. Civ. P. 41 3 (a)(1)(A)(i). Here, no party has answered or moved for summary judgment. (See docket). 4 Further, the Ninth Circuit recognizes a party has an absolute right prior to answer or summary 5 judgment to dismiss fewer than all named defendants or claims without a court order. Pedrina v. 6 Chun,

, 609-10 (9th Cir. 1993). Alternatively, the Court construes Plaintiff’s Notice 7 as a motion to amend the Complaint under Federal Rule of Civil Procedure 15(a). Hells Canyon 8 Pres. Council v. U.S. Forest Serv.,

(9th Cir. 2005) (Rule 15(a) “is the 9 appropriate mechanism” when a party is eliminating an issue or one or more claims but not 10 completely dismissing a defendant). 11 Accordingly, it is ORDERED: 12 1. In accordance with Plaintiff’s Notice, the following named Defendants are dismissed: the 13 Bureau of Prisons, Rex, Zaragoza, Borjas, Champman, J. Casanova, Koffier, N. Rojas, 14 Perez, Silva, D. Martinez, Amador-Sanchez, J. Johl and K. Officer are dismissed. 15 Additionally, Plaintiff’s claims brought under

, his Bivens Eighth 16 Amendment excessive use of force claims against all Defendants, his Bivens Eighth 17 Amendment deliberate medical indifference claim against Defendant Dr. Paltengni in his 18 official capacity, his Bivens Eighth Amendment deliberate medical indifference claims 19 against unidentified medical staff, his FTCA sexual battery claims, and his FTCA 20 negligence claims are dismissed without prejudice by operation of law. (See Doc. No. 21 12); see also Fed. R. Civ. P. 41(a)(1)(A)(i); Fed. R. Civ. P. 15(a). 22 2. The Clerk shall correct the caption to reflect Plaintiff’s voluntary dismissal of the 23 following Defendants: Bureau of Prisons, Rex, Zaragoza, Borjas, Champman, J. 24 Casanova, Koffier, N. Rojas, Perez, Silva, D. Martinez, Amador-Sanchez, J. Johl and K. 25 Officer. 26 3. Plaintiff’s Complaint will proceed on the following claims: (1) FTCA claim against the 27 United States for assault and battery stemming from the actions of Defendants Borjas, 28 Casanova, and Chapman after removing Plaintiff from his cell; (2) FTCA claim against 1 the United States for battery stemming from Defendant Chapman spitting in Plaintiff's 2 food; (3) FTCA claim against the United States for intentional inflection of emotional 3 distress (“ITED”) stemming from the actions of Defendant Chapman while Plaintiff was in 4 SHU; and (4) Bivens Eighth Amendment medical deliberate indifference claim against 5 Defendant Dr. Paltengni in his individual capacity only. 6 4. The Court will direct service of Plaintiffs Complaint by separate order. 7 8 Dated: _ November 18, 2025 Kobo Zh. Bareh Hack 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28