Opinion
1:22-cv-00277-HBK (PC)
02-14-2023
KAREEM J. HOWELL, Plaintiff, v. N. VERA, I. MEDINA, I. CEBALLOS, J.B. FUGATE, J. NAVARRO, A. RANDOLPH, C. GIPSON, H. COMPOS, Defendants.
ORDER GRANTING PLAINTIFF'S CONSTRUED MOTION TO FILE A FIRST AMENDED COMPLAINT (DOC. NO. 5)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kareem Howell, is a current state prisoner proceeding pro se on his initial complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). Pending before the Court is Plaintiff's pleading labeled “Notice of Motion to Voluntarily Dismiss a Defendant From This Civil Action” filed February 10, 2023. (Doc. No. 5). Plaintiff requests defendant H. Campos be dismissed from the action. (Id.).
Plaintiff's complaint alleges: (1) a First Amendment retaliation claim against all named defendants; (2) a Eighth Amendment excessive use of force against all named defendants; and a conspiracy claim against defendant H. Compos. (Doc. No. 1). 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. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior dismiss fewer than all named defendants or claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993).
Nonetheless because the Court has not conducted a screening on the initial complaint as required under 29 U.S.C. § 1915A, the Court the Court will construe the pleading as a motion to amend and afford Plaintiff the opportunity to file a first amended complaint to include only those defendants and related claims he wishes to prosecute in this action. Fed.R.Civ.P. 15. In filing his first amended complaint, Plaintiff should be aware the Rules permit a complaint to include only related claims against a party and permit joinder of all defendants alleged to be liable for the “same transaction, occurrence, or series of transactions or occurrences” where “any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 18(a) and 20(a)(2) (emphasis added). The Rules do not permit conglomeration of unrelated claims against unrelated defendants in a single lawsuit. Unrelated claims must be filed in separate lawsuits.
Accordingly, it is ORDERED:
1. Plaintiff's motion to dismiss (Doc. No. 5) construed as a motion to file an amended complaint is GRANTED.
2. Plaintiff shall deliver his first amended complaint to correctional officials for mailing no later March 10, 2023.
3. The Clerk of Court shall include a blank civil rights complaint form for Plaintiff's use.