(PC) Rios v. Ortiz

• Court: District Court, E.D. California
• Decided: March 22, 2024
• Docket: 1:23-cv-01595
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MIGUEL RIOS, Case No. 1:23-cv-01595-HBK (PC) 12 Plaintiff, ORDER NOTING VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 13 v. 41(a)(1)(A)(i) OF CERTAIN DEFENDANTS AND CLAIMS 14 ORTIZ, MORENO, MOYA, and NECOCHEA, ORDER DIRECTING CLERK TO REVISE 15 DOCKET TO REFLECT ONLY NAMED Defendants. DEFENDANT ORTIZ 16 (Doc. No. 6) 17

18 19 Plaintiff Jose Miguel Rios, a pretrial detainee, is proceeding pro se and in forma pauperis 20 in this action filed under 42 U.S.C. § 1983. On February 9, 2024, this Court issued a screening 21 order on Plaintiff’s Complaint. (Doc. No. 5). As discussed in the screening order, the Complaint 22 states a cognizable Fourteenth Amendment excessive use of force claim against Defendant Ortiz 23 but no other claim. (Id. at 1). Specifically, the Court found Plaintiff’s Fourteenth Amendment 24 failure to protect claim against Ortiz failed to state a claim, and the First Amendment retaliation 25 claims against Defendants Moreno, Moya and Necochea were misjoined. (Id. at 9). The 26 Screening Order afforded Plaintiff the opportunity to (1) file an amended complaint; (2) file a 27 notice under Rule 41 that he is willing to proceed only on the claims the court found cognizable 28 in its screening order; or (3) stand on his Complaint subject to the undersigned issuing Findings 1 | and Recommendations to dismiss the defendants and claims not cognizable. (Ud. at 9-10). On 2 | March 21, 2024, Plaintiff filed a Notice dated March 12, 2024, signed to under penalty of perjury, 3 | stating that he wishes to “proceed only on the claim deemed cognizable, Fourteenth Amendment 4 | excessive use of force against Defendant Ortiz, thereby voluntarily dismissing Defendants Moya, 5 | Moreno, and Necochea and the unrelated claims the Court deemed not properly joined or 6 | cognizable.” (Doc. No. 6 at 1). 7 Plaintiff may voluntarily dismiss any defendant or claim without a court order by filing a 8 | notice of dismissal before the opposing party answers the complaint or moves for summary 9 | judgment. Fed. R. Civ. P. 41 (a)(1)(A)G). Here, no party has answered or moved for summary 10 | judgment. (See docket). Further, the Ninth Circuit recognizes a party has an absolute right prior 11 | to an answer or motion for summary judgment to dismiss fewer than all named defendants or 12 | claims without a court order. Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). And 13 | Plaintiff may properly dismiss certain claim against a Defendant under Federal Rule of Civil 14 | Procedure 15(a). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 15 | 2005) (Rule 15(a) “is appropriate mechanism” when party is eliminating an issue or one or more 16 | claims but not completely dismissing a defendant). In accordance with Plaintiff's notice, 17 | Defendants Moya, Moreno, and Necochea are dismissed without prejudice by operation of law 18 | and Plaintiff's Fourteenth Amendment failure to protect claim against Ortiz is dismissed. Fed. R. 19 | Civ. P. 41(a)(1)(A)Q@); Fed. R. Civ. P. 15(a). Plaintiff's Complaint will proceed on Plaintiff's 20 | Fourteenth Amendment claim against Defendant Ortiz for excessive use of force. (See Doc. Nos. 21 | 1,5). The Court will direct service of process on Defendant Ortiz by separate order. 22 Accordingly, it is ORDERED: 23 The Clerk of Court shall correct the docket to reflect Plaintiff's notice of voluntary 24 | dismissal under Rule 41(a)(1) of Defendants Moya, Moreno, and Necochea. | Dated: _ March 22, 2024 law Nh. fareh Sass □□□ 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE