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Youngblood v. Dicarlo

United States District Court, C.D. California

July 29, 2016

JESSE L. YOUNGBLOOD, Plaintiff,
v.
WARDEN LORI R. DICARLO, et al., Defendants.

          ORDER TO SHOW CAUSE

          CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.

         BACKGROUND

         Plaintiff, a state prisoner presently confined at the Corcoran State Prison, filed this civil rights action pursuant to 42 U.S.C. section 1983 on November 25, 2014, in the United States District Court for the Southern District of California. The Complaint attempted to assert claims against prison officials at the California Institution for Men (“CIM”). Plaintiff named as Defendants: (1) CIM Warden Lori D. DiCarlo, sued in her individual capacity only; and (2) five unknown CIM correctional officers, all sued as “John Does” in both their individual and official capacities, except for John Doe One whom Plaintiff sued in his individual capacity only.

         On February 6, 2015, the United States District Court for the Southern District of California transferred the action to this Court. On February 10, 2015, the Court issued an Order granting Plaintiff leave to proceed in forma pauperis (“IFP”) without prepayment of filing fees.

         On February 25, 2015, the Court stayed the present action pending the Ninth Circuit’s decision in Youngblood v. 5 Unknown CIM Correctional Officers, Ninth Circuit case number 14-55098, District Court case number ED CV 11-1625-JAK(E) (“the prior action”). The pleadings in the prior action contained essentially the same allegations as those made in the present case, asserted against the same Defendants. As related in more detail in the Court’s April 13, 2016 Order, the Court dismissed the prior action without prejudice on November 28, 2012, for failure to effect timely service on the fictitious Defendants and failure to prosecute. On August 5, 2013, the Ninth Circuit Court of Appeals vacated the judgement of dismissal and remanded the prior action to this Court to allow Plaintiff an opportunity to take “limited discovery” in an effort to identify the fictitious Defendants. See Youngblood v. 5 Unknown CIM Correctional Officers, 536 Fed. App’x 758 (9th Cir. 2013). This Court then granted Plaintiff a period of time to conduct such discovery and ordered Plaintiff to file a declaration, following the expiration of that time period, stating what if any identifying information Plaintiff had provided to the United States Marshals Service. Plaintiff did not file any such declaration. Accordingly, on January 2, 2014, the Court dismissed the action without prejudice for failure to prosecute and failure to comply with a court order. Judgment was entered on January 3, 2014. See Youngblood v. DiCarlo, 2014 WL 29356 (C.D. Cal. Jan. 2, 2014). On March 3, 2016, the Ninth Circuit affirmed this Court’s dismissal without prejudice of the prior action. See Youngblood v. 5 Unknown CIM Correctional Officers, 635 Fed. App’x 386 (9th Cir. 2016). The Ninth Circuit issued the mandate on March 28, 2016.

         In the present case, on April 13, 2016, the Court issued an “Order Dismissing Complaint With Leave to Amend.” The Court dismissed the claims against Warden DiCarlo and the claims for money damages against the Defendants in their official capacities without leave to amend and with prejudice, on the ground that the Court previously had dismissed these same claims with prejudice in the prior action. The Court also dismissed the claim for injunctive relief without leave to amend but without prejudice, otherwise dismissed the Complaint with leave to amend and granted Plaintiff leave to file a First Amended Complaint. Additionally, the Court ordered Plaintiff to file, contemporaneously with any First Amended Complaint, a declaration showing whether Plaintiff possessed any identifying information concerning the fictitiously named Defendants and requiring any such declaration to describe in detail all such information Plaintiff possesses. The Court ordered the filing of this declaration in light of the dismissal of the prior action for failure to effect service and failure to prosecute.

         On April 27, 2016, Plaintiff filed: (1) a First Amended Complaint; and (2) an “Application” purportedly pursuant to this Court’s local rules and various provisions of the California Penal Code. Attached to the First Amended Complaint is an untitled declaration in which Plaintiff states, inter alia, that he allegedly has been unable to obtain the identities of the fictitious Defendants, but that, “[t]hrough due diligence and discovery, ” Plaintiff allegedly “should be able to utilize the clerk of the court and this district” to subpoena CIM records in order to obtain the identities of the fictitious Defendants (see First Amended Complaint, attachment, ECF Dkt. No. 11, p. 12). In the “Application, ” Plaintiff states, incorrectly, that the present action “is not related to any other case and/or legal action.” Plaintiff appears to request the assistance of the Court Clerk and/or the Marshals Service in serving a subpoena on Defendant DiCarlo (an incomplete copy of which is attached to the Application), purportedly seeking to obtain various records including records containing the names of other Defendants.

         SUMMARY OF PLAINTIFF’S ALLEGATIONS

         In the original Complaint in this action, Plaintiff alleged that, during a prison transfer on or about December 23, 2010, Plaintiff suffered an injury from a slip and fall from a bus. Plaintiff alleged that, upon his arrival at CIM, Defendant John Doe assertedly made jokes concerning Plaintiff. Defendant John Doe One allegedly placed Plaintiff in a small holding cage with no clothing, blankets, pillow, medication (assertedly including insulin), water, food, pillow, or bathroom, where Plaintiff remained for approximately twelve hours. Defendants John Does Two, Three, Four and Five “jointly took part with apportionment of fault” in these alleged actions. Plaintiff alleged that Warden DiCarlo had the duty to supervise, train, and delegate authority over CIM staff.

         The original Complaint claimed that Defendants inflicted cruel and unusual punishment on Plaintiff. Plaintiff also alleged that the bus was not equipped with seat belts or hand rails, and that the injuries he purportedly suffered in the fall on the bus were the product of negligence. Plaintiff sought injunctive relief, compensatory and punitive damages.

         The First Amended Complaint again asserts an official capacity claim against Warden DiCarlo, in plain violation of the Court’s Order that, in any First Amended Complaint, Plaintiff must not include any claim dismissed without leave to amend in that Order. Plaintiff also sues five fictitious “John Doe” Defendants. The charging allegations are similar to those contained in the original Complaint. Plaintiff again seeks injunctive relief, despite the fact that the Court dismissed Plaintiff’s injunctive relief claim without leave to amend in the April 13, 2016 Order. Plaintiff also seeks compensatory and punitive damages.

         DISCUSSION

         I. Plaintiff Violated the Court’s April 13, 2016 Order By Including in His First Amended Complaint Claims Previously Dismissed Without Leave to Amend.

         Plaintiff’s First Amended Complaint contains claims which the Court dismissed without leave to amend in its April 13, 2016 Order. That Order specifically cautioned Plaintiff that any First Amended Complaint could not contain any claims dismissed without leave to amend. Yet, the First Amended Complaint again asserts claims against Warden DiCarlo and claims for injunctive relief, in violation of the Court’s April 13, 2016 Order. Therefore, the action is subject to dismissal for violation of a court order. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for failure to follow court order); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th ...


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