Carranza v. Unnamed Defendants

Filing 27

ORDER Discharging Order to Show Cause ( 15 ); Granting Motions for Extension of Time ( 18 , 20 , 24 ); and Denying Motions to Stop Retaliation and for Preliminary Injunction ( 16 , 20 , 24 ). The Court grants Plaintiff forty- five (45) days fro m the date of this Order in which to file his Second Amended Complaint. The Court also directs the Clerk of Court to provide Plaintiff with another copy of its form Civil Rights Complaint. Signed by Judge Gonzalo P. Curiel on 8/17/16. (All non-registered users served via U.S. Mail Service)(Blank 1983 complaint sent to Plaintiff. dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SELVIN O. CARRANZA,
CDCR #T-67780,

ORDER:

Plaintiff,

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vs.

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Case No.: 3:14-cv-0773-GPC-BLM

1) DISCHARGING ORDER TO
SHOW CAUSE
[Doc. No. 15];

EDMUND G. BROWN, Jr., Governor,
et al.,

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Defendants.

2) GRANTING MOTIONS FOR
EXTENSION OF TIME
[Doc. Nos. 18, 20, 24];

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AND

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3) DENYING MOTIONS TO STOP
RETALIATION AND FOR
PRELIMINARY INJUNCTION
[Doc. Nos. 16, 20, 22]

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Selvin O. Carranza (“Plaintiff”), a prisoner proceeding pro se and currently

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incarcerated at California State Prison, in Lancaster, California (“LAC”),1 initiated this

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Plaintiff was incarcerated at Kern Valley State Prison (“KVSP”) on March 28, 2014 when he first
initiated this action claiming that unidentified correctional officials at Richard J. Donovan Correctional
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civil action pursuant to 42 U.S.C. § 1983 more than two years ago, on March 28, 2014

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(Doc. No. 1). The case remains open, and Plaintiff has recently filed motions seeking

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extensions of time (Doc. Nos. 18, 20, 24) and repeated motions for injunctive relief (Doc.

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Nos. 16, 20, 22), but he has yet to file the Second Amended Complaint (“SAC”) he was

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granted leave to file on October 26, 2015. See Doc. No. 14.

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I.

Procedural History

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On October 26, 2015, after Plaintiff had been granted three previous extensions of

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time in which to amend, the Court granted Plaintiff a fourth opportunity to amend, and

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gave him an additional forty-five (45) days in which to file his SAC. See Doc. No. 14. The

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Court further cautioned Plaintiff that his SAC must comply with FED. R. CIV. P. 8(a)(2),

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directed the Clerk to provide him with a blank copy of its form Civil Rights Complaint in

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order to assist him in meeting Rule 8’s requirements, and limited him to an additional 15

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pages of pleading pursuant to S.D. CAL. CIVLR 8.2(a). Id. at 6-7. Finally, the Court notified

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Plaintiff that if he failed to file his SAC within 45 days, which would have been on or about

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December 12, 2015, his case would be subject to dismissal without prejudice based on his

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failure to prosecute and/or comply with the Court’s Orders permitting amendment. Id. at

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7-8 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not

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take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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Facility (“RJD”) staged a “gladiator-style fight” between him and another inmate on June 22, 2012, while
he was incarcerated there. See Doc. No. 1 at 1. On July 15, 2015, Plaintiff filed a Notice of Change of
Address indicating he had been transferred from KVSP to the California Correctional Institution (“CCI”)
in Tehachapi. See Doc. No. 13. By the time Plaintiff filed his Response to the Court’s OSC on April 13,
2016, he had been transferred to Pleasant Valley State Prison (“PVSP”) in Coalinga, where he was placed
in “Short Term Restricted Housing” (“STRH”). See Doc. Nos. 16, 18. On June 3, 2016, Plaintiff included
another change of address, this time to California State Prison in Lancaster (“LAC”), in a Motion that also
requests another extension of time, and injunctive relief requiring the “CDCR to stop retaliation” and to
return his “property.” (Doc. No. 20.) Between PVSP and LAC, Plaintiff also contends he was transferred
from PSVP to a “crisis bed” at California Men’s Colony (“CMC”) in San Luis Obispo on May 4, 2016,
until he was “discharged” from suicide watch and ultimately transferred to LAC on May 11, 2016. See
Doc. No. 20 at 1-2.
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December 12, 2015, came and went, and still Plaintiff filed no SAC; therefore, on

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March 15, 2016, the Court ordered Plaintiff to show cause why his case should not be

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dismissed for failure to prosecute and for failing to comply with the Court’s Order. (Doc.

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No. 15.) The OSC ostensibly granted Plaintiff a fifth extension of time and an additional

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45 days leave, or until April 26, 2016, in which to file his SAC or face dismissal. (Id. at 2.)

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The Court further cautioned Plaintiff that “no further extensions of time to amend [would]

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be granted.” (Id.)

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On April 13, 2016, Plaintiff filed a Response to the OSC (Doc. No. 16), from

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Pleasant Valley State Prison (“PVSP”), blaming prison officials at the California

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Correctional Institution (“CCI”) in Tehachapi, California, for failing to mail his “civil

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action,” which the Court presumes was his SAC, and which he claims to have filed on

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December 9, 2015, “per the mail box rule” from CCI. (Id. at 1-2; Doc. No. 18 at 3-4; Doc.

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No. 22 at 1.) Plaintiff claims he was not aware that his “civil action” had not been mailed

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to the Court until March 23, 2016, when it was returned to him “incomplete,” with “parts

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missing,” and “without explanation [as to] ‘why it hadn’t been mailed out.’” (Doc. No. 16

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at 2; Doc. No. 18 at 4; Doc. No. 22 at 1.) In his Response, Plaintiff also requests “an

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immediate preliminary injunction against the Secretary of the CDCR, Warden, [and]

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Associate Wardens at CCI” to “stop retaliating against [him],” to “stop hindering” his

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access to this Court, and requiring his transfer to the LAC “Honor Yard.” (See Doc. No. 16

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at 11.)

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In several additional Motions, Plaintiff requests extensions of time in which to file

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his SAC (Doc. Nos. 18, 20, 24), an “update” on the status of his civil action, and injunctive

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relief requiring the Secretary of the CDCR (Doc. No. 20 at 4), and all “subordinates” to

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cease all acts of retaliation against him (Doc. Nos. 20, 22). In another “Notice” dated July

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21, 2016, Plaintiff claims to have begun a hunger strike at LAC in order to compel the

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return of his personal property, including the “civil action” he claims to have mailed on

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December 9, 2015, and quarterly packages from his family and private vendors, including

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vitamins and a TV (Doc. No. 24). On August 1, 2016, however, Plaintiff filed a second
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“Notice” informing the Court that while he is “still being deprived of [his] property,” he

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has ended his hunger strike due to its “foolishness.” (Doc. No. 26.)

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II.

Motions for Extension of Time to Amend

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As noted above, Plaintiff has already been granted five extensions of time in which

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to amend his pleadings in this case, and has been warned on several of those occasions that

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no further extensions of time would be granted. See Doc. Nos. 4, 6, 9, 14, 15. Because

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neither his original or his First Amended Complaint (“FAC”) complied with Rule 8, and

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because he sought leave to amend his FAC immediately after he filed it, on October 26,

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2015, the Court granted him leave to file “one single Second Amended Complaint, which

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properly and completely allege[d] all the causes of action” he intended to pursue, “name[d]

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all the parties he intend[ed] to sue,” and “include[d] a ‘short and plain statement’ of any

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and all grounds upon which he claims entitlement to relief.” (Doc. No. 14 at 5.)

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Plaintiff has yet to file the SAC that was due more than 6 months ago; instead he has

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filed three more requests for additional time in which to amend—all after the time for filing

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his SAC had long lapsed. See Doc. Nos. 18, 20, 24.

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Rule 6(b) of the Federal Rules of Civil Procedure provides that “[w]hen an act may

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or must be done within a specified time, the court may, for good cause, extend the time:

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(A) with or without motion or notice if the court acts, or if a request is made, before the

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original time or its extension expires; or (B) on motion made after the time has expired if

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the party failed to act because of excusable neglect. FED. R. CIV. P. 6(b)(1). “This rule, like

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all the Federal Rules of Civil Procedure, ‘[is] to be liberally construed to effectuate the

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general purpose of seeing that cases are tried on the merits.’” Ahanchian v. Xenon Pictures,

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Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010) (quoting Rodgers v. Watt, 722 F.2d 456, 459

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(9th Cir.1983)); see also FED. R. CIV. P. 1 (“[The Federal Rules] should be construed and

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administered to secure the just, speedy, and inexpensive determination of every action and

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proceeding.”).

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A plaintiff pursuing a civil rights action without counsel, like all other litigants, is

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required to obey the court’s orders, including an order to amend his pleading, and to do so
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within a time certain. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992);

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). His failure to obey the court’s

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orders and the local and federal rules and meet his responsibilities in prosecuting this action

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may justify dismissal, including dismissal with prejudice. Ferdik, 963 F.2d at 1262-63

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(affirming dismissal with prejudice for pro se prisoner's failure to comply with order

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requiring filing of amended civil rights complaint); Pagtalunan, 291 F.3d at 642 (affirming

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dismissal with prejudice for pro se prisoner’s failure to comply with order requiring filing

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of amended habeas petition); Moore v. United States, 193 F.R.D. 647, 653 (N.D. Cal. 2000)

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(denying motion for leave to file third amended complaint and dismissing action with

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prejudice for pro se plaintiff’s failure to comply with Rule 8); Franklin v. Murphy, 745

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F.2d 1221, 1232-33 (9th Cir. 1984) (affirming dismissal with prejudice for pro se prisoner’s

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failure to prosecute); Carey v. King, 856 F.2d 1439, 1441 (9th Cir.1988) (affirming

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dismissal without prejudice for pro se prisoner’s failure to comply with local rule requiring

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he notify the court of any change of address).

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Plaintiff now claims that he did attempt to comply with Court’s October 26, 2015

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Order when he “timely filed [his] civil action, due diligently prosecuting [his] case,” by

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placing it in a manila envelope and requesting that prison officials at CCI, where he was

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housed at the time, mail it to the Court. (Doc. No. 18 at 3-4.) Plaintiff further claims it was

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not until March 23, 2016, while he was in Ad-Seg at CCI that his “civil action was suddenly

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returned to [him] without explanation [as to] ‘why it hadn’t been mailed out.’” (Doc. No.

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22 at 1.) Plaintiff further claims that he “sought mental health treatment and was placed on

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suicide watch at PVSP from April 13, 2016, through April 25, 2016 (Doc. No. 18 at 4), and

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attributes his inability to timely amend to six prison transfers over the last three years, and

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miscellaneous hindrances and other obstacles posed by various prison officials at CCI,

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PVSP, and LAC, all of whom are alleged to have either delayed the return of or to have

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deprived him of his personal property. (Doc. No. 20 at 1-5; Doc. No. 24 at 1-3.)

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Therefore, based on these allegations, the Court finds Plaintiff has demonstrated the

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“good cause” and “excusable neglect” required under Rule 6(b)(1), Ahanchian, 624 F.3d
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at 1259, and GRANTS his several Motions requesting an extension of time (Doc. Nos. 18,

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20, 24). While the Court has already exercised “wide latitude” extending Plaintiff

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additional time to amend, id. at 1255, it will do so one final time in this case. See also

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Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (noting the district

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court’s “broad authority to impose reasonable time limits”) (citation and internal quotations

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omitted); cf. Efau v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (noting that while court

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has similarly broad discretion to grant extensions of time under FED. R. CIV. P. 4(m), those

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extensions must end somewhere, for “no court has ruled that the discretion is limitless.”).

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III.

Motions for Injunctive Relief

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In his Response to the Court’s OSC, filed on April 13, 2016, and after he had been

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transferred from both KVSP and CCI, Plaintiff includes a request for a preliminary

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injunction “order[ing] the Secretary for CDCR and his subordinates, to stop retaliating

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against [him],” and “hindering [his] access[] [to] this Court.” (Doc. No. 16 at 11). Plaintiff

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has also filed two separate Motions from LAC requesting similar injunctive relief

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preventing the “Secretary of the CDCR and his subordinates,” to stop his “being bounced

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around from prison to prison,” (Doc. No. 20 at 4), and ordering the return of “all [his]

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property.” (Doc. No. 22 at 1-3, 8, 11.)

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“A preliminary injunction is an extraordinary remedy never awarded as of right.”

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation

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omitted). “The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and

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that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

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(9th Cir. 2009) (quoting Winter, 555 U.S. at 20).

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To show irreparable harm, the “plaintiff must show that he is under threat of

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suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and

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imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged

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action of the defendant; and it must be likely that a favorable judicial decision will prevent
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or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citing

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Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180-

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181 (2000)). In sum, an injunction “may only be awarded upon a clear showing that the

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plaintiff is entitled to relief.” Winter, 555 U.S. at 22.

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Here, Plaintiff’s Motions for Injunctive Relief must be denied because he has yet to

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file a pleading that states a plausible claim for relief against any party. Therefore, he

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necessarily has not and cannot show that he is “likely to succeed on the merits” of any

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claim, that “the balance of equities tips in his favor,” or that the issuance of an injunction

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in his case would serve the public interest. Winter, 555 U.S. at 20. In addition, to the extent

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Plaintiff seeks injunctive relief enjoining prison officials at any institution other than LAC,

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where he is currently incarcerated, his motions have been mooted by his transfer. See Dilley

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v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (prisoners released from prison or transferred

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to a different prison may not sue for injunctive relief because they would no longer benefit

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from having the injunction issued) (citing Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975);

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Rupe v. Cate, 688 F. Supp. 2d 1035, 1043 (E.D. Cal. 2010).

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Finally, FED. R. CIV. P. 65(d)(2) provides that an injunction binds only persons who

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receive actual notice of it by personal service or otherwise: “(A) the parties; (B) the parties’

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officers, agents, servants, employees, and attorneys; and (C) other persons who are in active

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concert or participation with [them].” FED. R. CIV. P. 65(d)(2)(A)-(C). In general, “[a]

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federal court may issue an injunction if it has personal jurisdiction over the parties and

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subject matter jurisdiction over the claim; it may not attempt to determine the rights of

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persons not before the court.” Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1985). One

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“becomes a party officially, and is required to take action in that capacity, only upon service

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of summons or other authority-asserting measure stating the time within which the party

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served must appear to defend.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526

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U.S. 344, 350 (1999); see also Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-

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35 (1916).

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Thus, even if Plaintiff could satisfy all the Winter factors justifying extraordinary

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injunctive relief under Rule 65, at this stage of the proceedings, the Court simply lacks

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jurisdiction over any of the prison officials Plaintiff seeks to enjoin, none of which have

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been served, and most of which have never even been identified as parties in any pleading.

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Zepeda, 753 F.2d at 727-28.

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Therefore, Plaintiff’s Motions for Preliminary Injunction (Doc. Nos. 16, 22) and for

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“Secretary for CDCR to Ensure His Subordinate Stop Retaliating” and to “Provide

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[Plaintiff] all [his] Property’ (Doc. No. 20) are DENIED.

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IV.

Conclusion and Orders

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For all the reasons discussed, the Court:

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1)

DISCHARGES its March 15, 2016 Order to Show Cause (Doc. No. 15);

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DENIES Plaintiff’s Motions for Preliminary Injunction and for CDCR to

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Stop Retaliating and Provide or Return Property (Doc. Nos. 16, 20, 22);

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GRANTS Plaintiff’s Motions for Extension of Time to Amend (Doc. Nos.

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GRANTS Plaintiff forty-five (45) days from the date of this Order in which

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to file his Second Amended Complaint. Plaintiff’s pleading must be identified as his

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Second Amended Complaint, include Civil Case No. 14cv0773 GPC (BLM) in its caption,

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name the all parties he wishes to sue, and allege all the claims he wishes to pursue in one

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single, clear, and concise pleading.2 In order to assist him, and to encourage his timely

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Plaintiff is reminded that he need not cite case law or make any legal arguments. Instead, he should avoid
exaggeration, and use short, plain, declarative sentences to describe, in his own words, what each
individual person he names as a defendant did to violate his rights, when, where, and how they did it, and
what relief he seeks. See FED. R. CIV. P. 8(a)(2); Iqbal v. Ashcroft, 556 U.S. 662, 676 (2009) (noting that
“[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). If his SAC fails to comply with Rule 8, or otherwise fails to “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678
(citation omitted), it will be dismissed sua sponte, and prior to service upon any party pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
banc); Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (“The purpose of § 1915A is to ‘ensure
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compliance, the Court also DIRECTS the Clerk of Court to provide Plaintiff with another

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copy of its form Civil Rights Complaint pursuant to 42 U.S.C. § 1983, and strongly

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suggests that he use it. Plaintiff’s Second Amended Complaint must also comply with S.D.

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CAL. CIVLR 8.2(a); therefore, he may attach no more than fifteen (15) additional pages;

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and,

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CAUTIONS Plaintiff that no further extensions of time or motions requesting

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leave to exceed page limits will be granted. Therefore, should he fail to comply with the

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directions set forth in this Order by filing a Second Amended Complaint within the 45 days

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provided, the Court will dismiss his entire civil action without prejudice based on his failure

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to prosecute and/or comply with the Court’s Orders permitting amendment. See Lira, 427

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F.3d at 1169 (“If a plaintiff does not take advantage of the opportunity to fix his complaint,

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a district court may convert the dismissal of the complaint into dismissal of the entire

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action.”); Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the

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plaintiff eventually to respond to the court’s ultimatum—either by amending the complaint

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or by indication to the court that it will not do so—is properly met with the sanction of a

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Rule 41(b) dismissal.”).

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IT IS SO ORDERED.
Dated: August 17, 2016

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that the targets of frivolous or malicious suits need not bear the expense of responding.’”) (citation
omitted).
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