Carroll v. State of California et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 5/18/2018 VACATING the 49 findings and recommendations filed 4/4/2018. Plaintiff has 30 days to file a second amended complaint. No extensions of time will be granted. The Clerk shall send plaintiff the form for a civil rights complaint. Plaintiff's 50 motion for appointment of counsel is DENIED.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TREMAYNE DEON CARROLL,
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Plaintiff,
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No. 2:16-cv-1759 TLN KJN P
v.
ORDER
STATE OF CALIFORNIA, et al.,
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Defendants.
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
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to 42 U.S.C. § 1983. For the reasons stated herein, the April 4, 2018 findings and
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recommendations recommending that this case be dismissed are vacated, and plaintiff is granted
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thirty days to file a second amended complaint.
Plaintiff filed the original complaint on July 27, 2016. (ECF No. 1.) On October 31,
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2016, the undersigned dismissed the complaint with thirty days to file an amended complaint.
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(ECF No. 12.) On November 14, 2016, plaintiff filed an amended complaint. (ECF No. 18.) On
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December 9, 2016, the undersigned dismissed the amended complaint with thirty days to file a
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second amended complaint. (ECF No. 21.) Plaintiff appealed the December 9, 2016 order to the
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Ninth Circuit Court of Appeals. (ECF No. 23.) On February 28, 2017, the Ninth Circuit
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dismissed plaintiff’s appeal for lack of jurisdiction. (ECF No. 32.)
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On December 29, 2016, the undersigned granted plaintiff a thirty day extension of time to
file a second amended complaint. (ECF No. 26.)
On February 27, 2017, the undersigned granted plaintiff a forty-five day extension of time
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to file a second amended complaint. (ECF No. 31.) On April 10, 2017, plaintiff filed a pleading
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titled “Petition/Second Amended Petition.” (ECF No. 38.) On April 18, 2017, the undersigned
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issued an order finding that plaintiff’s April 10, 2017 pleading was not a second amended
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complaint. (ECF No. 39.) The undersigned granted plaintiff thirty days to file a second amended
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complaint. (Id.)
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Thirty days passed and plaintiff did not file a second amended complaint. Accordingly,
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on June 1, 2017, the undersigned recommended that this action be dismissed. (ECF No. 41.)
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Plaintiff did not file objections to the findings and recommendations. On August 7, 2017, the
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Honorable Troy L. Nunley adopted the findings and recommendations and judgment was entered.
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(ECF Nos. 42, 43.)
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On August 24, 2017, plaintiff filed a document titled “petition for extension of time …and
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reconsideration for appointment of counsel.” (ECF No. 44.) In this document, plaintiff alleged
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that he was in the CDCR Mental Health Delivery System. Plaintiff also alleged that he was
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housed in administrative segregation for non-disciplinary reasons. Plaintiff also alleged that he
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had no access to his legal property or the law library. On December 22, 2017, plaintiff filed a
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motion for extension of time. (ECF No. 45.)
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On January 8, 2018, Judge Nunley issued an order construing plaintiff’s August 24, 2017
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and December 22, 2017 pleadings as requests for relief from judgment pursuant to Federal Rule
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of Civil Procedure 60(b). (ECF No. 46.) Judge Nunley granted the requests for relief from
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judgment and granted plaintiff sixty days to file a second amended complaint. (Id.)
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On February 15, 2018, plaintiff filed a motion to amend. (ECF No. 47.) This motion was
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not accompanied by a proposed amended complaint. Accordingly, on February 22, 2018, the
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undersigned denied the motion to amend and granted plaintiff thirty days to file a second
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amended complaint. (ECF No. 48.) Thirty days passed and plaintiff did not file a second
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amended complaint. Accordingly, on April 4, 2018, the undersigned recommended that this
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action be dismissed. (ECF No. 49.)
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On April 19, 2018, plaintiff filed objections to the findings and recommendations. (ECF
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No. 50.) Plaintiff alleges that he is “mentally/physically/hearing impaired/disabled inmate.”
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Plaintiff alleges that prison officials physically assaulted him in retaliation for reporting
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“employee sexual misconduct.” Plaintiff alleges that prison officials also retaliated against him
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by denying him access to medical and mental health programs. Plaintiff also alleges that, in
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apparent retaliation, prison officials destroyed his legal property, hearing devices, mobility
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devices, and rejected his grievances. Plaintiff alleges that he has none of the original filings from
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this case.
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The undersigned observes that in plaintiff’s February 15, 2018 motion to amend, he did
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not mention the alleged destruction of his legal property. (ECF No. 47.) In his December 22,
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2017 motion for extension of time, plaintiff alleged that “CDCR had moved him over 10
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times…depriving him of his property…rendering it impossible for him to meet deadlines.” (ECF
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No. 45.) In this motion for extension of time, plaintiff did not claim that his legal property had
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been destroyed.
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Plaintiff’s claim, in the objections, that his legal property has been destroyed is conclusory
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and unsupported. Plaintiff does not describe how or when the destruction of his legal property
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allegedly occurred.
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The undersigned also observes that plaintiff has shown an ability to respond to court
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orders, despite his claims of mental and physical impairments and retaliation. In addition,
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plaintiff competently litigated two motions for injunctive relief during the course of this action.
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On December 19, 2016 and March 15, 2017, plaintiff filed motions for injunctive relief. (ECF
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Nos. 25, 33.) In these motions, plaintiff complained of conditions at the California Health Care
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Facility (“CHCF”) in Stockton. On March 24, 2017, the undersigned recommended that these
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motions be denied. (ECF No. 36.) On April 10, 2017, plaintiff filed objections to these findings
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and recommendations. (ECF No. 37.) On March 23, 2017, Judge Nunley adopted the March 24,
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2017 findings and recommendations. (ECF No. 40.)
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The second amended complaint need only contain a short and plain statement of the claim,
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i.e., the factual basis for the claim. Fed. R. Civ. P. 8(a). In other words, plaintiff is not required
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to cite cases in support of his claim. Despite the undersigned’s skepticism of the grounds raised in
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plaintiff’s objections, in an abundance of caution, plaintiff is granted thirty days to file a second
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amended complaint. No further extensions of time will be granted.
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In his objections, plaintiff also requests appointment of counsel. For the reasons stated by
Judge Nunley in his January 8, 2018 order, this motion is denied. (See ECF No. 46.)
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Accordingly, IT IS HEREBY ORDERED that:
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1. The April 4, 2018 findings and recommendations (ECF No. 49) are vacated;
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2. Plaintiff is granted thirty days to file a second amended complaint; no extensions of
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time to file the second amended complaint will be granted; failure to file a second amended
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complaint will result in a recommendation of dismissal of this action;
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3. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint;
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4. Plaintiff’s motion for appointment of counsel is denied.
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Dated: May 18, 2018
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Carr1759.ord(2)
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