Parnell v. Botkins et al
ORDER signed by Magistrate Judge Kendall J. Newman on 1/11/2018 PARTIALLY GRANTING plaintiff's 25 motion; DENYING as moot plaintiff's 23 motion for an extension of time; and defendants Dr. Chin and Dr. Win are DISMISSED without prejudice. (Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-2692 MCE KJN P
BOTKINS, et al.,
Plaintiff is a state prisoner, proceeding without counsel. On November 2, 2017, the
undersigned recommended that plaintiff’s claims against defendants Dr. Chin and Dr. Win be
dismissed from this action without prejudice because plaintiff failed to state a cognizable Eighth
Amendment claim against such doctors, and such claims were based on incidents unrelated to the
claims against custodial officers Botkins, Jensen, and Muhammad. On November 22, 2017,
plaintiff filed a motion for extension of time to file objections. However, on January 2, 2018,
plaintiff filed a document styled, “Motion to Sever Defendants and to Dismiss Complaint Without
Prejudice.” (ECF No. 25.) Plaintiff stipulates to the undersigned’s “recommendation that all
claims against defendants Dr. Chin and Dr. Win be dismissed without prejudice.” (ECF No. 25 at
1.) Plaintiff acknowledges that his claims against the doctors are unrelated to the other claims
raised herein, and states he intends to file an amended complaint against the doctors forthwith.
Because plaintiff makes clear his agreement with the recommended dismissal of the
doctors from this action, his request to dismiss the doctors is construed as a request for voluntary
dismissal under Rule 41(a) of the Federal Rules of Civil Procedure, and Dr. Chin and Dr. Win are
dismissed from this action without prejudice.
In the meantime, plaintiff is reminded that he is required to oppose the remaining
defendants’ motion to dismiss on or before January 20, 2018. (ECF No. 24.) Although the title
of plaintiff’s recent filing refers to “dismiss complaint without prejudice,” plaintiff did not ask the
court to dismiss his claims against the remaining defendants, and did not include a statement of
non-opposition to their pending motion to dismiss. If plaintiff wishes to voluntarily dismiss his
claims against defendants Botkins, Jensen, and Muhammad, he may do so, or, in the alternative,
he may file a statement of non-opposition to their motion to dismiss.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff’s January 2, 2018 motion (ECF No. 25) is partially granted;
2. Plaintiff’s motion for an extension of time (ECF No. 23) is denied as moot; and
3. Defendants Dr. Chin and Dr. Win are dismissed without prejudice (ECF No. 20). Fed.
R. Civ. P. 41(a).
Dated: January 11, 2018
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