Opinion
1:22-cv-00977-HBK (PC)
09-29-2023
ANDY GOMEZ, Plaintiff, v. GONZALEZ and CHARLES, Defendants.
ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 41(a)(1)(A)(i) AND FED. R. CIV. P. 15(a) OF CERTAIN CLAIMS
(Doc. No. 12)
HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff Andy Gomez, a prisoner, is proceeding pro se and in forma pauperis in this action filed under 42 U.S.C. § 1983. On June 23, 2023, this Court issued a screening order on Plaintiff's Complaint. As discussed at length in this Court's June 23, 2023 Screening Order, the Complaint states a cognizable Eighth Amendment failure to protect claim against Defendants Gomez and Charles in their individual capacities but no other claim. (Doc. No. 7 at 4-6). 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 Complaint subject to the undersigned issuing Findings and Recommendations to dismiss the defendants and claims not cognizable. (Id. at 7). After granting Plaintiff two extensions of time to respond to the June 23, 2023 Screening Order, on September 28, 2023, Plaintiff filed a pleading, signed and dated September 25, 2023, titled “Plaintiff's Intent to Stand on Current Complaint as Screened.” (Doc. No. 12). In the pleading Plaintiff states he “intend[s] to stand on the current complaint as screened and proceed only on his Eighth Amendment failure to protect claim against both defendants Gonzalez and Charles in their individual capacities, thereby voluntarily dismissing the Fourteenth Amendment and official capacity claims....” (Id.).
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). Alternatively, the Court construes Plaintiff's motion to dismiss Plaintiff's Fourteenth Amendment and official capacity claims against Defendants Gonzalez and Charles 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). In accordance with Plaintiff's notice, his Fourteenth Amendment and official capacity claims are dismissed without prejudice by operation of law. Plaintiff's Complaint will proceed on his Eighth Amendment failure to protect claim against Defendants Gomez and Charles. (See Doc. Nos. 1, 7). The Court will direct service of process on Defendants Gomez and Charles by separate order.
Accordingly, it is ORDERED:
Plaintiff's Fourteenth Amendment and official capacity claims against Defendants Gomez and Charles are dismissed without prejudice.