United States District Court, C.D. California
JESSE L. YOUNGBLOOD, Plaintiff,
WARDEN LORI R. DICARLO, et al., Defendants.
ORDER TO SHOW CAUSE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.
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
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
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.
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.
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.
OF PLAINTIFF’S ALLEGATIONS
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.
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.
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.
Plaintiff Violated the Court’s April 13, 2016 Order
By Including in His First Amended Complaint Claims Previously
Dismissed Without Leave to Amend.
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 ...