Parnell v. Botkins et al

Filing 26

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY PARNELL, 12 No. 2:16-cv-2692 MCE KJN P Plaintiff, 13 v. 14 BOTKINS, et al., 15 ORDER Defendants. 16 Plaintiff is a state prisoner, proceeding without counsel. On November 2, 2017, the 17 18 undersigned recommended that plaintiff’s claims against defendants Dr. Chin and Dr. Win be 19 dismissed from this action without prejudice because plaintiff failed to state a cognizable Eighth 20 Amendment claim against such doctors, and such claims were based on incidents unrelated to the 21 claims against custodial officers Botkins, Jensen, and Muhammad. On November 22, 2017, 22 plaintiff filed a motion for extension of time to file objections. However, on January 2, 2018, 23 plaintiff filed a document styled, “Motion to Sever Defendants and to Dismiss Complaint Without 24 Prejudice.” (ECF No. 25.) Plaintiff stipulates to the undersigned’s “recommendation that all 25 claims against defendants Dr. Chin and Dr. Win be dismissed without prejudice.” (ECF No. 25 at 26 1.) Plaintiff acknowledges that his claims against the doctors are unrelated to the other claims 27 raised herein, and states he intends to file an amended complaint against the doctors forthwith. 28 //// 1 Because plaintiff makes clear his agreement with the recommended dismissal of the 2 doctors from this action, his request to dismiss the doctors is construed as a request for voluntary 3 dismissal under Rule 41(a) of the Federal Rules of Civil Procedure, and Dr. Chin and Dr. Win are 4 dismissed from this action without prejudice. 5 In the meantime, plaintiff is reminded that he is required to oppose the remaining 6 defendants’ motion to dismiss on or before January 20, 2018. (ECF No. 24.) Although the title 7 of plaintiff’s recent filing refers to “dismiss complaint without prejudice,” plaintiff did not ask the 8 court to dismiss his claims against the remaining defendants, and did not include a statement of 9 non-opposition to their pending motion to dismiss. If plaintiff wishes to voluntarily dismiss his 10 claims against defendants Botkins, Jensen, and Muhammad, he may do so, or, in the alternative, 11 he may file a statement of non-opposition to their motion to dismiss. 12 Good cause appearing, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s January 2, 2018 motion (ECF No. 25) is partially granted; 14 2. Plaintiff’s motion for an extension of time (ECF No. 23) is denied as moot; and 15 3. Defendants Dr. Chin and Dr. Win are dismissed without prejudice (ECF No. 20). Fed. 16 R. Civ. P. 41(a). 17 Dated: January 11, 2018 18 19 20 /parn2692.41a 21 22 23 24 25 26 27 28 2

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