(PC) Burpee v. Huff

• Court: District Court, E.D. California
• Decided: August 29, 2023
• Docket: 1:21-cv-00297
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TODD D. BURPEE, Case No. 1:21-cv-00297-ADA-HBK (PC) 12 Plaintiff, ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 13 v. 41(a)(1)(A)(i) OF CERTAIN DEFENDANT AND CLAIMS 14 SERGEANT HUFF, UNKNOWN CORRECTIONAL OFFICER, and ORDER DIRECTING CLERK TO REVISE 15 CALIFORNIA DEPARTMENT OF DOCKET TO REFLECT ONLY NAMED CORRECTIONS AND DEFENDANTS 16 REHABILITATION, ORDER DENYING PLAINTIFF’S MOTION 17 Defendants. FOR EARLY DISCOVERY WITHOUT PREJUDICE 18 (Doc. No. 11) 19

20 21 Plaintiff Todd D. Burpee, a prisoner, is proceeding pro se and in forma pauperis in this 22 action filed under 42 U.S.C. § 1983. On July 28, 2023, this Court issued a screening order on 23 Plaintiff’s Complaint. As discussed at length in this Court’s July 28, 2023 Screening Order, the 24 Complaint states a cognizable Fourteenth Amendment equal protection claim against Defendants 25 Huff and “Unknown Correctional Officer” but no other claim. (Doc. No. 10 at 4-7). Specifically, 26 the Court found the Complaint did not state a cognizable claim First Amendment free exercise of 27 religion claim against any of the Defendants and failed to state any claim against the California 28 Department of Corrections and Rehabilitation. (Id.). The Screening Order afforded Plaintiff the 1 opportunity to (1) file an amended complaint; (2) file a notice under Rule 41 that he is willing to 2 proceed only on the claims the court found cognizable in its screening order; or (3) stand on his 3 Complaint subject to the undersigned issuing Findings and Recommendations to dismiss the 4 defendants and claims not cognizable. (Id. at 7-8). On August 25, 2023, Plaintiff filed a 5 pleading, dated August 23, 2023, signed to under penalty of perjury stating that he desires “to 6 stand on his current Complaint as screened” “and proceed only on his Fourteenth Amendment of 7 equal protection claim against Defendants Huff and the unknown correctional officer, and thereby 8 volunta[r]ily dismissing Defendant CDCR and Plaintiff’s First Amendment claim….” (Doc. No. 9 11 at 1-2). 10 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 11 notice of dismissal before the opposing party answers the complaint or moves for summary 12 judgment. Fed. R. Civ. P. 41 (a)(1)(A)(i). Here, no party has answered or moved for summary 13 judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 14 to an answer or motion for summary judgment to dismiss fewer than all named defendants or 15 claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). In 16 accordance with Plaintiff’s notice, the California Department of Corrections and Rehabilitation 17 and Plaintiff’s First Amendment claim against Huff and the unknown correctional officer are 18 without prejudice by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Plaintiff’s Complaint will 19 proceed on his Fourteenth Amendment equal protection claim against Defendants Huff and the 20 “Unknown Correctional Officer.” (See Doc. Nos. 1, 11). The Court will direct service of process 21 on Defendants Huff and the “Unknown Correctional Officer” by separate order. To the extent the 22 Plaintiff requests to engage in discovery to identify the name of the “Unknown Correctional 23 Officer” and file an amended complaint to substitute the name for the “Unknown Correctional 24 Officer,” such a request is not yet ripe. Plaintiff may renew his request if service cannot be 25 effectuated on the “Unknown Correctional Officer” through the Court’s e-service process. 26 Accordingly, it is ORDERED: 27 1. The Clerk of Court shall correct the docket to reflect Plaintiff’s notice of voluntary 28 dismissal under Rule 41(a)(1) of Defendant California Department of Corrections and 1 Rehabilitation and shall add “Unknown Correctional Officer” as a Defendant to the 2 docket. 3 2. Plaintiff’s request to engage in early discovery to identify the name of the “Unknown 4 Correctional Officer” is denied without prejudice as premature. 5 ° | Dated: _ August 29, 2023 Mihaw. □□ fareh Zacks 7 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28