Opinion
1:21-cv-01096-HBK (PC)
09-05-2023
PAUL EDWARD DURAN, Plaintiff, v. M. ROSS, A. VALDEZ, and E. PARKS, Defendants.
ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 41(A)(1)(A)(I) OF CERTAIN DEFENDANTS AND CLAIMS ORDER DIRECTING CLERK TO REVISE DOCKET TO REFLECT ONLY NAMED DEFENDANT (DOC. NO. 11)
HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Paul Duran, a prisoner, is proceeding pro se and in forma pauperis in this action filed under 42 U.S.C. § 1983. On July 25, 2023, this Court issued a screening order on Plaintiff's First Amended Complaint. (Doc. No. 10, “FAC”). As discussed in the July 25, 2023 Screening Order, the FAC states a cognizable Eighth Amendment excessive use of force claim against Defendant Ross, but no other claim. (Doc. No. 10 at 1). Specifically, the Court found the FAC did not state any cognizable claim against Defendants Valdez or Parks. (Id. at 8). The Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a notice under Rule 41 that he is willing to proceed only on the claims the court found cognizable in its screening order; or (3) stand on his FAC subject to the undersigned issuing Findings and Recommendations to dismiss the defendants and claims not cognizable. (Id. at 11-12). On August 23, 2023, Plaintiff filed a pleading titled “Notice Under Rule 41,” dated August 2, 2023 signed to under penalty of perjury stating that he “intends to stand on his current complaint as screened . . . and proceed[] only on his Eighth Amendment excessive use of force claim against Defendant Ross, therefore voluntarily dismissing Defendants Valdez and Parks and any other claims the court deemed not cognizable.” (Doc. No. 11 at 1).
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). In accordance with Plaintiff's notice, Defendants Valdez and Parks are dismissed without prejudice by operation of law. Fed.R.Civ.P. 41(a)(1)(A)(i). Plaintiff's FAC will proceed on Plaintiff's Eighth Amendment claim against Defendant Ross for excessive use of force. (See Doc. No. 8). The Court will direct service of process on Defendant Ross by separate order.
Accordingly, it is ORDERED:
The Clerk of Court shall correct the docket to reflect Plaintiff's notice of voluntary dismissal under Rule 41(a)(1) of Defendants Valdez and Parks.