Jesse L Youngblood v. Lori R DiCarlo et al

Filing 12

ORDER TO SHOW CAUSE by Magistrate Judge Charles F. Eick. Within 21 days of the date of this Order, Plaintiff is ordered to show cause in writing, if any there be: (1) why this action should not be dismissed, with prejudice with respect to the claims against Warden DiCarlo and the claims for damages against Defendants in their official capacities, and without prejudice with respect to Plaintiff's remaining claims, because of: (a) failure to obey a court order; and (b) failure to effect timel y service; and (2) why Plaintiff's IFP status should not be revoked on the ground that Plaintiff has suffered three or dismissals qualifying as "strikes" under 28 U.S.C. section 1915(g). Failure timely to respond to this Order may result in dismissal of the action. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JESSE L. YOUNGBLOOD,

)
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Plaintiff,
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v.
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WARDEN LORI R. DICARLO,
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et al.,
)
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Defendants.
)
______________________________)

NO. ED CV 15-249-JAK(E)

ORDER TO SHOW CAUSE

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BACKGROUND

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Plaintiff, a state prisoner presently confined at the Corcoran

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State Prison, filed this civil rights action pursuant to 42 U.S.C.

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section 1983 on November 25, 2014, in the United States District Court

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for the Southern District of California.

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assert claims against prison officials at the California Institution

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for Men (“CIM”).

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D. DiCarlo, sued in her individual capacity only; and (2) five unknown

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The Complaint attempted to

Plaintiff named as Defendants: (1) CIM Warden Lori

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CIM correctional officers, all sued as “John Does” in both their

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individual and official capacities, except for John Doe One whom

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Plaintiff sued in his individual capacity only.

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On February 6, 2015, the United States District Court for the

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Southern District of California transferred the action to this Court.

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On February 10, 2015, the Court issued an Order granting Plaintiff

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leave to proceed in forma pauperis (“IFP”) without prepayment of

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filing fees.

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On February 25, 2015, the Court stayed the present action pending

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the Ninth Circuit’s decision in Youngblood v. 5 Unknown CIM

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Correctional Officers, Ninth Circuit case number 14-55098, District

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Court case number ED CV 11-1625-JAK(E) (“the prior action”).

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pleadings in the prior action contained essentially the same

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allegations as those made in the present case, asserted against the

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same Defendants.

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2016 Order, the Court dismissed the prior action without prejudice on

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November 28, 2012, for failure to effect timely service on the

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fictitious Defendants and failure to prosecute.

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the Ninth Circuit Court of Appeals vacated the judgement of dismissal

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and remanded the prior action to this Court to allow Plaintiff an

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opportunity to take “limited discovery” in an effort to identify the

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fictitious Defendants.

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Officers, 536 Fed. App’x 758 (9th Cir. 2013).

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Plaintiff a period of time to conduct such discovery and ordered

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Plaintiff to file a declaration, following the expiration of that time

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period, stating what if any identifying information Plaintiff had

The

As related in more detail in the Court’s April 13,

On August 5, 2013,

See Youngblood v. 5 Unknown CIM Correctional

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This Court then granted

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provided to the United States Marshals Service.

Plaintiff did not

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file any such declaration.

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dismissed the action without prejudice for failure to prosecute and

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failure to comply with a court order.

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3, 2014.

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2014).

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dismissal without prejudice of the prior action.

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Unknown CIM Correctional Officers, 635 Fed. App’x 386 (9th Cir. 2016).

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The Ninth Circuit issued the mandate on March 28, 2016.

Accordingly, on January 2, 2014, the Court

Judgment was entered on January

See Youngblood v. DiCarlo, 2014 WL 29356 (C.D. Cal. Jan. 2,

On March 3, 2016, the Ninth Circuit affirmed this Court’s
See Youngblood v. 5

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In the present case, on April 13, 2016, the Court issued an

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“Order Dismissing Complaint With Leave to Amend.”

The Court dismissed

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the claims against Warden DiCarlo and the claims for money damages

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against the Defendants in their official capacities without leave to

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amend and with prejudice, on the ground that the Court previously had

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dismissed these same claims with prejudice in the prior action.

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Court also dismissed the claim for injunctive relief without leave to

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amend but without prejudice, otherwise dismissed the Complaint with

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leave to amend and granted Plaintiff leave to file a First Amended

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Complaint.

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contemporaneously with any First Amended Complaint, a declaration

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showing whether Plaintiff possessed any identifying information

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concerning the fictitiously named Defendants and requiring any such

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declaration to describe in detail all such information Plaintiff

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possesses.

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of the dismissal of the prior action for failure to effect service and

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failure to prosecute.

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The

Additionally, the Court ordered Plaintiff to file,

The Court ordered the filing of this declaration in light

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On April 27, 2016, Plaintiff filed: (1) a First Amended

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Complaint; and (2) an “Application” purportedly pursuant to this

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Court’s local rules and various provisions of the California Penal

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Code.

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declaration in which Plaintiff states, inter alia, that he allegedly

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has been unable to obtain the identities of the fictitious Defendants,

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but that, “[t]hrough due diligence and discovery,” Plaintiff allegedly

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“should be able to utilize the clerk of the court and this district”

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to subpoena CIM records in order to obtain the identities of the

Attached to the First Amended Complaint is an untitled

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fictitious Defendants (see First Amended Complaint, attachment, ECF

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Dkt. No. 11, p. 12).

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incorrectly, that the present action “is not related to any other case

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and/or legal action.”

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the Court Clerk and/or the Marshals Service in serving a subpoena on

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Defendant DiCarlo (an incomplete copy of which is attached to the

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Application), purportedly seeking to obtain various records including

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records containing the names of other Defendants.

In the “Application,” Plaintiff states,

Plaintiff appears to request the assistance of

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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In the original Complaint in this action, Plaintiff alleged that,

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during a prison transfer on or about December 23, 2010, Plaintiff

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suffered an injury from a slip and fall from a bus.

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that, upon his arrival at CIM, Defendant John Doe assertedly made

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jokes concerning Plaintiff.

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Plaintiff in a small holding cage with no clothing, blankets, pillow,

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medication (assertedly including insulin), water, food, pillow, or

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bathroom, where Plaintiff remained for approximately twelve hours.

Plaintiff alleged

Defendant John Doe One allegedly placed

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Defendants John Does Two, Three, Four and Five “jointly took part with

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apportionment of fault” in these alleged actions.

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that Warden DiCarlo had the duty to supervise, train, and delegate

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authority over CIM staff.

Plaintiff alleged

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The original Complaint claimed that Defendants inflicted cruel

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and unusual punishment on Plaintiff.

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bus was not equipped with seat belts or hand rails, and that the

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injuries he purportedly suffered in the fall on the bus were the

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product of negligence.

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Plaintiff also alleged that the

Plaintiff sought injunctive relief,

compensatory and punitive damages.

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The First Amended Complaint again asserts an official capacity

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claim against Warden DiCarlo, in plain violation of the Court’s Order

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that, in any First Amended Complaint, Plaintiff must not include any

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claim dismissed without leave to amend in that Order.

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sues five fictitious “John Doe” Defendants.

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are similar to those contained in the original Complaint.

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again seeks injunctive relief, despite the fact that the Court

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dismissed Plaintiff’s injunctive relief claim without leave to amend

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in the April 13, 2016 Order.

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punitive damages.

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Plaintiff also

The charging allegations
Plaintiff

Plaintiff also seeks compensatory and

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DISCUSSION

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I.

Plaintiff Violated the Court’s April 13, 2016 Order By Including

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in His First Amended Complaint Claims Previously Dismissed Without

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Leave to Amend.

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Plaintiff’s First Amended Complaint contains claims which the

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Court dismissed without leave to amend in its April 13, 2016 Order.

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That Order specifically cautioned Plaintiff that any First Amended

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Complaint could not contain any claims dismissed without leave to

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amend.

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Warden DiCarlo and claims for injunctive relief, in violation of the

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Court’s April 13, 2016 Order.

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dismissal for violation of a court order.

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291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909

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(2003) (court may dismiss action for failure to follow court order);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied,

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506 U.S. 915 (1992) (court may dismiss action for failure to comply

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with a court order, after the court considers the appropriate

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factors); see also Fed. R. Civ. P. 41(b).

Yet, the First Amended Complaint again asserts claims against

Therefore, the action is subject to
See Pagtalunan v. Galaza,

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In some circumstances, the Court might be inclined to overlook

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such a violation and to permit a plaintiff leave to amend his or her

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pleading to delete claims previously dismissed with prejudice.

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However, as discussed below, the Court elects to issue an Order to

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Show Cause, in light of: (1) Plaintiff’s failure to effect timely

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service of process; and (2) the apparent applicability of the

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“three strikes” provision of the Prison Litigation Reform Act, Pub L.

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No. 104-134, 110 Stat. 1321 (1996).

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II.

As in the Prior Action, Plaintiff Has Failed to Effect Timely

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Service of Process.

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At the time Plaintiff filed this action, Rule 4(m) of the Federal

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Rules of Civil Procedure provided that a court may dismiss an action

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without prejudice if the summons and complaint were not served on the

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defendants within 120 days after filing the complaint or such further

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time as ordered by the court.

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1041 (9th Cir. 2007).1

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stay, the 120-day period has elapsed.

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untitled declaration that, despite the fact that Plaintiff has been

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pursuing his claims against Defendants since 2011, and the fact that

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Plaintiff has been afforded ample time to obtain information

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concerning the identities of the fictitious Defendants sufficient to

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effect service, Plaintiff is no closer to obtaining such information

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than he was when the Court dismissed the prior action.

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years have elapsed since the Court’s March 27, 2012 Order Directing

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Service of Process By the United States Marshal in the prior action.

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Yet, Plaintiff still has failed to provide the Marshals Service with

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information sufficient to effect service of process.

See Efaw v. Williams, 473 F.3d 1038,

Even taking into account the period of the
It clear from Plaintiff’s

Over four

Plaintiff’s

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Rule 4(m) was amended, effective December 1, 2015, to
change the 120-day time period for service to 90 days. The Court
uses the 120-day limit in effect at the time Plaintiff filed this
action. See Sobania v. Locals 302 & 612 Intern’l Union of
Operating Engineers, 2016 WL 1436124, at *1 n.1 (W.D. Wash. Apr.
12, 2016); Vazquez v. Lee County, Florida Bd. of County
Commissioners, 2016 WL 1271510, at *1 (M.D. Fla. Apr. 1, 2016).
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untitled declaration contains no new information concerning the

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identities of the fictitious Defendants and does not describe any

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efforts Plaintiff has made to obtain any such information.

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Plaintiff’s apparent belief that the Court Clerk or Marshals Service

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can subpoena prison authorities on Plaintiff’s behalf is unfounded.

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See Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (in forma

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pauperis statute, 28 U.S.C. section 1915, does not authorize

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expenditure of public funds for witness fees and expenses).

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III.

Plaintiff Appears to Have Suffered Three or More Prior

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Dismissals Qualifying as “Strikes” Under the Prison Litigation Reform

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Act.

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Under the Prison Litigation Reform Act, Pub L. No. 104-134, 110

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Stat. 1321 (1996), a prisoner may not bring a civil action IFP if, on

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three (3) or more previous occasions, the prisoner has brought an

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action or appeal in a court of the United States that was dismissed on

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the grounds that it was frivolous or malicious or failed to state a

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claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury.

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denial of IFP status can count as a prior dismissal or “strike” for

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purposes of section 1915(g).

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(9th Cir. 2008).

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the Federal Rule of Civil Procedure also can count as a “strike.”

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Knapp v. Hogan, 738 F.3d 1106, 1110-11 (9th Cir. 2013), cert. denied,

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135 S. Ct. 57 (2014).

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28 U.S.C. § 1915(g).

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O’Neal v. Price, 531 F.3d 1146, 1153-54

A dismissal for a repeated violation of Rule 8 of

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“Once a prisoner has been placed on notice of the potential

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disqualification under § 1915(g) by either the district court or the

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defendant, the prisoner bears the ultimate burden of persuading the

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court that § 1915(g) does not preclude IFP status.”

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807 F.3d 1202, 1206 (9th Cir. 2015) (citation, internal brackets and

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quotations omitted).

Richey v. Dahne,

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Recent sua sponte review of the dockets of other federal courts
has revealed that Plaintiff previously has filed three or more actions

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which may qualify as “strikes” under section 1915(g).2

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Amended Complaint contains no allegations from which it plausibly

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might be inferred that Plaintiff is under imminent danger of serious

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physical injury.

And the First

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Cases Filed in the Northern District of California

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1.

Youngblood v. The People of the State of California, et al.,

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case number C 11-4064-PJH (PR).

On March 16, 2012, the district court

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dismissed the second amended complaint in this civil rights case with

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prejudice for failure to state a claim for relief.

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appealed.

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the Ninth Circuit deemed the appeal to be frivolous and ordered

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Plaintiff to pay the full filing fee.

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Plaintiff

On June 13, 2012, the United States Court of Appeals for

Plaintiff did not pay the full

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The Court takes judicial notice of Plaintiff’s federal
court cases and appeals described herein. See Mir v. Little
Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court
may take judicial notice of court records).
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filing fee.

Therefore, on July 24, 2012, the Ninth Circuit dismissed

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the appeal for failure to pay fees.

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2.

Youngblood v. Warden, case number C 12-4423-PJH (PR).

On

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February 4, 2013, the district court dismissed the complaint in this

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civil rights case without leave to amend as frivolous and for failure

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to state a claim for relief under Rule 8 of the Federal Rules of Civil

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Procedure.

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4, 2013).

See Youngblood v. Lamarque, 2013 WL 427351 (N.D. Cal. Feb.
Plaintiff appealed.

On May 31, 2013, the United States

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Court of Appeals for the Ninth Circuit deemed the appeal to be

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frivolous and ordered Plaintiff to pay the full filing fee.

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did not pay the full filing fee.

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Ninth Circuit dismissed the appeal for failure to pay the filing fee.

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The United States Supreme Court denied certiorari on October 15, 2013.

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See Youngblood v. Lamarque, 134 S. Ct. 433 (2013).

Plaintiff

Therefore, on July 16, 2013, the

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3.

Youngblood v. Feather Falls Casino, case number C 13-1282-PJH

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(PR).

On March 29, 2013, the district court dismissed this civil

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rights action as frivolous and for failure to state a claim for

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relief.

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Court of Appeals for the Ninth Circuit deemed the appeal to be

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frivolous and ordered Plaintiff to pay the full filing fee.

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did not pay the full filing fee.

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Ninth Circuit dismissed the appeal for failure to pay the filing fee.

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The United States Supreme Court denied certiorari on October 17, 2013.

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See Youngblood v. Feather Falls Casino, 134 S. Ct. 293 (2013).

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Plaintiff appealed.

On June 20, 2013, the United States

Plaintiff

Therefore, on July 26, 2013, the

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4.

Youngblood v. M.S. Evans, et al., case number C-13-2097-PJH

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(PR).

On May 14, 2013, the district court dismissed this civil rights

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action without leave to amend as frivolous and for failure to state a

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claim for relief.

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for the Ninth Circuit deemed the appeal to be frivolous and ordered

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Plaintiff to pay the full filing fee.

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filing fee.

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dismissed the appeal for failure to respond to the court’s July 9,

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2013 order and failure to prosecute.

On July 9, 2013, the United States Court of Appeals

Plaintiff did not pay the full

Therefore, on August 15, 2013, the Ninth Circuit

The United States Supreme Court

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denied certiorari on October 7, 2013, see Youngblood v. Evans, 134 S.

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Ct. 301 (2013), and denied a rehearing on December 9, 2013, see

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Youngblood v. Evans, 134 S. Ct. 818 (2013).

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5.

Youngblood v. Warden, case number C 13-4366-PJH (PR).

On

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November 12, 2013, the district court dismissed this civil rights

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action without leave to amend for failure to state a claim.

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appealed.

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for the Ninth Circuit deemed the appeal to be frivolous and ordered

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Plaintiff to pay the full filing fee.

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filing fee.

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the appeal for failure to pay fees.

Plaintiff

On February 20, 2014, the United States Court of Appeals

Plaintiff did not pay the full

Therefore, on April 17, 2014, the Ninth Circuit dismissed

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Cases Filed in the Eastern District of California

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1.

Youngblood v. State of Calif., et al., case number 2:05-cv-

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00727-LKK-DAD.

On March 6, 2006, the Magistrate Judge issued an

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“Order and Findings & Recommendations” inter alia recommending

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dismissal of this civil rights action without prejudice pursuant to
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Heck v. Humphrey, 512 U.S. 477 (1994).3

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the Report and Recommendation on September 11, 2006 and judgment was

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entered on that date.

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United States Court of Appeals for the Ninth Circuit issued an order

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stating that Plaintiff was not entitled to IFP status for the appeal

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and ordering Plaintiff to pay the filing fee.

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not pay the filing fee, on February 22, 2007 the Ninth Circuit

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dismissed the appeal for failure to prosecute.

The District Court adopted

Plaintiff appealed.

On January 19, 2007, the

Because Plaintiff did

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2.

Youngblood v. Chico Parole Outpatient Clinic, et al., case

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number CIV S-11-2159-GGH P.

On October 21, 2011, the District Court

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issued an order dismissing the civil rights complaint pursuant to Heck

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v. Humphrey, 512 U.S. 477 (1994), and closing the case.

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appealed.

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appeal for lack of jurisdiction as untimely.

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Supreme Court denied certiorari on October 7, 2013, see Youngblood v.

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Chico Parole Outpatient Clinic, 134 S. Ct. 145 (2013), and denied

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Plaintiff

On February 27, 2013, the Ninth Circuit dismissed the
The United States

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A dismissal pursuant to Heck v. Humphrey qualifies as a
strike under section 1915(g). See Smith v. Veterans Admin., 636
F.3d 1306, 1312 (10th Cir.), cert. denied, 132 S. Ct. 381 (2011),
abrogated on other grounds, Coleman v. Tollefson, 135 S. Ct. 1759
(2015); Barger v. Mueller, 2016 WL 2593895, at *1 & n.2 (E.D.
Cal. May 5, 2016) (citing cases); see also Belanus v. Clark, 796
F.3d 1021 (9th Cir. 2015), pet. for cert. filed (No. 15-9629)
April 22, 2016 (upholding district court’s determination that
Heck dismissal constituted a strike under section 1915(g),
without discussing issue).
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rehearing on December 9, 2013, see Youngblood v. Chico Parole

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Outpatient Clinic, 134 S. Ct. 814 (2013).4

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Additionally, the United States District Court for the Eastern

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District has deemed Plaintiff to be subject to the provisions of

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section 1915(g) on three occasions:

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1.

In Youngblood v. Doctor Kim, case number 1:13-cv-01118-SAB

(PC), the District Court issued an order on August 2, 2013, denying

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Plaintiff’s motions to proceed IFP pursuant to section 1915(g) based

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on the prior orders of dismissal in: (1) Youngblood v. State of

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Calif., United States District Court for the Eastern District of

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California case number 2:05-cv-00727-LKK-DAD; (2) Youngblood v. Chico

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Parole Outpatient Clinic, et al., United States District Court for the

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Eastern District of California case number 2:11-cv-02159-GGH; and (3)

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Youngblood v. Warden, United States District Court for the Northern

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District of California case number 4:12-cv-4423-PJH.

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appealed.

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the Ninth Circuit denied Plaintiff’s motion to proceed in forma

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pauperis pursuant to section 1915(g) and ordered Plaintiff to pay the

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full filing fee.

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on February 27, 2014 the Ninth Circuit dismissed the appeal for

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failure to prosecute.

Plaintiff

On January 15, 2014, the United States Court of Appeal for

Because Plaintiff did not pay the full filing fee,

The United States Supreme Court dismissed the

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The United States Supreme Court recently ruled that
Plaintiff had repeatedly abused that Court’s process and ordered
the Clerk of the Supreme Court not to accept any further
petitions in noncriminal matters from Plaintiff unless he pays
the docketing fee and complies with the Supreme Court Rule 33.1.
See Youngblood v. Superior Court of State of California, Butte
County, 136 S. Ct. 546 (2015).
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petition for certiorari on June 23, 2014, see Youngblood v. Kim, 134

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S. Ct. 2846 (2014), and denied rehearing on October 6, 2014, see

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Youngblood v. Kim, 135 S. Ct. 324 (2014).

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2.

In Youngblood v. Allen, case number 14-00595-LJO-SKO (PC),

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the District Court issued an order on April 28, 2014, denying

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Plaintiff’s motions to proceed IFP pursuant to section 1915(g) based

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on the prior orders of dismissal in: (1) Youngblood v. The People, et

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al., United States District Court for the Northern District of

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California case number C 11-4064-PJH (PR); (2) Youngblood v. Lamarque,

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United States District Court for the Northern District of California

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case number 4:12-cv-4423-PJH; and (3) Youngblood v. Feather Falls

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Casino, case number C 13-1282-PJH (PR).

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3.

Most recently, in Youngblood v. Briggs, case number 2-15-

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01865-KJN, the District Court issued an order on May 9, 2015 denying

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Plaintiff’s application to proceed IFP pursuant to section 1915(g)

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based on the prior orders of dismissal of the United States District

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Court for the Northern District of California in: (1) Youngblood v.

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State of California, case number C 11-4064-PJH (PR); (2) Youngblood v.

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Warden, case number C 12-4423-PJH (PR); (3) Youngblood v. Feather

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Falls Casino, case number C 13-1282-PJH (PR); and (4) Younblood v.

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Warden, case number C 13-4366-PJH (PR).

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that courts in the Eastern District of California twice previously had

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deemed Plaintiff to be subject to section 1915(g).

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The court further observed

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ORDER TO SHOW CAUSE

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Within twenty-one (21) days of the date of this Order, Plaintiff

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is ordered to show cause in writing, if any there be: (1) why this

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action should not be dismissed, with prejudice with respect to the

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claims against Warden DiCarlo and the claims for damages against

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Defendants in their official capacities, and without prejudice with

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respect to Plaintiff’s remaining claims, because of: (a) failure to

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obey a court order; and (b) failure to effect timely service; and (2)

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why Plaintiff’s IFP status should not be revoked on the ground that

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Plaintiff has suffered three or more dismissals qualifying as

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“strikes” under 28 U.S.C. section 1915(g).

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to this Order may result in dismissal of the action.

Failure timely to respond

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IT IS SO ORDERED.

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DATED: July 29, 2016.

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_________________________________
/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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