Carroll v. State of California et al

Filing 51

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TREMAYNE DEON CARROLL, 12 Plaintiff, 13 14 No. 2:16-cv-1759 TLN KJN P v. ORDER STATE OF CALIFORNIA, et al., 15 Defendants. 16 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 17 18 to 42 U.S.C. § 1983. For the reasons stated herein, the April 4, 2018 findings and 19 recommendations recommending that this case be dismissed are vacated, and plaintiff is granted 20 thirty days to file a second amended complaint. Plaintiff filed the original complaint on July 27, 2016. (ECF No. 1.) On October 31, 21 22 2016, the undersigned dismissed the complaint with thirty days to file an amended complaint. 23 (ECF No. 12.) On November 14, 2016, plaintiff filed an amended complaint. (ECF No. 18.) On 24 December 9, 2016, the undersigned dismissed the amended complaint with thirty days to file a 25 second amended complaint. (ECF No. 21.) Plaintiff appealed the December 9, 2016 order to the 26 Ninth Circuit Court of Appeals. (ECF No. 23.) On February 28, 2017, the Ninth Circuit 27 dismissed plaintiff’s appeal for lack of jurisdiction. (ECF No. 32.) 28 //// 1 1 2 3 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 4 to file a second amended complaint. (ECF No. 31.) On April 10, 2017, plaintiff filed a pleading 5 titled “Petition/Second Amended Petition.” (ECF No. 38.) On April 18, 2017, the undersigned 6 issued an order finding that plaintiff’s April 10, 2017 pleading was not a second amended 7 complaint. (ECF No. 39.) The undersigned granted plaintiff thirty days to file a second amended 8 complaint. (Id.) 9 Thirty days passed and plaintiff did not file a second amended complaint. Accordingly, 10 on June 1, 2017, the undersigned recommended that this action be dismissed. (ECF No. 41.) 11 Plaintiff did not file objections to the findings and recommendations. On August 7, 2017, the 12 Honorable Troy L. Nunley adopted the findings and recommendations and judgment was entered. 13 (ECF Nos. 42, 43.) 14 On August 24, 2017, plaintiff filed a document titled “petition for extension of time …and 15 reconsideration for appointment of counsel.” (ECF No. 44.) In this document, plaintiff alleged 16 that he was in the CDCR Mental Health Delivery System. Plaintiff also alleged that he was 17 housed in administrative segregation for non-disciplinary reasons. Plaintiff also alleged that he 18 had no access to his legal property or the law library. On December 22, 2017, plaintiff filed a 19 motion for extension of time. (ECF No. 45.) 20 On January 8, 2018, Judge Nunley issued an order construing plaintiff’s August 24, 2017 21 and December 22, 2017 pleadings as requests for relief from judgment pursuant to Federal Rule 22 of Civil Procedure 60(b). (ECF No. 46.) Judge Nunley granted the requests for relief from 23 judgment and granted plaintiff sixty days to file a second amended complaint. (Id.) 24 On February 15, 2018, plaintiff filed a motion to amend. (ECF No. 47.) This motion was 25 not accompanied by a proposed amended complaint. Accordingly, on February 22, 2018, the 26 undersigned denied the motion to amend and granted plaintiff thirty days to file a second 27 amended complaint. (ECF No. 48.) Thirty days passed and plaintiff did not file a second 28 amended complaint. Accordingly, on April 4, 2018, the undersigned recommended that this 2 1 action be dismissed. (ECF No. 49.) 2 On April 19, 2018, plaintiff filed objections to the findings and recommendations. (ECF 3 No. 50.) Plaintiff alleges that he is “mentally/physically/hearing impaired/disabled inmate.” 4 Plaintiff alleges that prison officials physically assaulted him in retaliation for reporting 5 “employee sexual misconduct.” Plaintiff alleges that prison officials also retaliated against him 6 by denying him access to medical and mental health programs. Plaintiff also alleges that, in 7 apparent retaliation, prison officials destroyed his legal property, hearing devices, mobility 8 devices, and rejected his grievances. Plaintiff alleges that he has none of the original filings from 9 this case. 10 The undersigned observes that in plaintiff’s February 15, 2018 motion to amend, he did 11 not mention the alleged destruction of his legal property. (ECF No. 47.) In his December 22, 12 2017 motion for extension of time, plaintiff alleged that “CDCR had moved him over 10 13 times…depriving him of his property…rendering it impossible for him to meet deadlines.” (ECF 14 No. 45.) In this motion for extension of time, plaintiff did not claim that his legal property had 15 been destroyed. 16 Plaintiff’s claim, in the objections, that his legal property has been destroyed is conclusory 17 and unsupported. Plaintiff does not describe how or when the destruction of his legal property 18 allegedly occurred. 19 The undersigned also observes that plaintiff has shown an ability to respond to court 20 orders, despite his claims of mental and physical impairments and retaliation. In addition, 21 plaintiff competently litigated two motions for injunctive relief during the course of this action. 22 On December 19, 2016 and March 15, 2017, plaintiff filed motions for injunctive relief. (ECF 23 Nos. 25, 33.) In these motions, plaintiff complained of conditions at the California Health Care 24 Facility (“CHCF”) in Stockton. On March 24, 2017, the undersigned recommended that these 25 motions be denied. (ECF No. 36.) On April 10, 2017, plaintiff filed objections to these findings 26 and recommendations. (ECF No. 37.) On March 23, 2017, Judge Nunley adopted the March 24, 27 2017 findings and recommendations. (ECF No. 40.) 28 //// 3 1 The second amended complaint need only contain a short and plain statement of the claim, 2 i.e., the factual basis for the claim. Fed. R. Civ. P. 8(a). In other words, plaintiff is not required 3 to cite cases in support of his claim. Despite the undersigned’s skepticism of the grounds raised in 4 plaintiff’s objections, in an abundance of caution, plaintiff is granted thirty days to file a second 5 amended complaint. No further extensions of time will be granted. 6 7 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.) 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The April 4, 2018 findings and recommendations (ECF No. 49) are vacated; 10 2. Plaintiff is granted thirty days to file a second amended complaint; no extensions of 11 time to file the second amended complaint will be granted; failure to file a second amended 12 complaint will result in a recommendation of dismissal of this action; 13 3. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint; 14 4. Plaintiff’s motion for appointment of counsel is denied. 15 Dated: May 18, 2018 16 17 18 19 Carr1759.ord(2) kc 20 21 22 23 24 25 26 27 28 4

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