(PC) Matlock v. Kern County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. MATLOCK, Case No. 1:19-cv-1368-NONE-JLT (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE RESPONSE TO SCREENING 13 v. ORDER 14 KERN COUNTY, et al., (Doc. 27) 15 Defendants. 14-DAY DEADLINE 16 17 On October 1, 2020, the Court found that Plaintiff’s first amended complaint stated a 18 cognizable Fourteenth Amendment failure to protect claim against John Does #1, #2, and #3, 19 and found no other cognizable claims. (Doc. 18 at 8.) The Court ordered Plaintiff to file a 20 second amended complaint, notify the Court that he is willing to proceed only on the claim 21 found cognizable, or notify the Court that he wishes to stand on his first amended complaint. 22 (Id. at 9–10.) The Court cautioned: “If plaintiff fails to comply with this order, the undersigned 23 will recommend the action be dismissed for failure to obey a court order and failure to 24 prosecute.” (Doc. 10.) 25 Plaintiff was transferred to a different facility. (Doc. 19, 20.) Upon motion by Plaintiff, 26 on December 7, 2020, the Court granted Plaintiff a 30-day extension of time to file his response. 27 (Doc. 22.) After Plaintiff failed to respond to the screening order, on March 3, 2021, the Court 28 1 entered findings and recommendations recommending the dismissal of the action without 2 prejudice for failure to comply with a court order and failure to prosecute. (Doc. 23.) 3 On May 10, 2021, upon de novo review of the case, the Court found the findings and 4 recommendations to be supported by the record and proper analysis. (Doc. 24 at 2.) However, 5 the Court granted Plaintiff another opportunity to make his election in response to the screening 6 order: 7 The court reiterates here that if plaintiff wishes to proceed on the claim found to be cognizable by the magistrate judge’s screening order, he must respond to 8 the screening order’s request in some fashion, either by electing to: proceed 9 only on the claim found cognizable (in which case plaintiff will be granted a short period of time to identify the Doe defendants); file an amended complaint; 10 or stand on the complaint as pleaded. In an abundance of caution, given the seriousness of the allegations at 11 issue, the court will afford plaintiff one more opportunity to make his election 12 in this regard. 13 (Doc. 24 at 2.) Plaintiff filed a response to the screening order by stating he would like to “like 14 to pursue with either option 1 or 3 of the letter received.” (Doc. 25.) 15 The Court construed this response to indicate that Plaintiff does not wish to amend his 16 complaint, but he must still make an election of one of the two remaining options: 17 (1) Plaintiff must notify the court that he wishes to forego amendment 18 and proceed only on the claims found to be cognizable by the screening order, 19 in which case the Court will then recommend that his remaining claims be 20 dismissed, and he will be granted a short period in which he must identify the 21 Doe defendants; OR 22 (3) Plaintiff may “stand on the first amended complaint as pleaded” in 23 which case the magistrate judge would issue findings and recommendations 24 recommending dismissal of the claims found not cognizable in the screening 25 order and the question as to which, if any, of any of the claims he had asserted 26 were cognizable would be decided by a District Judge. 27 On June 17, 2021, this Court ordered Plaintiff to notify the Court, in writing, within 28 fourteen days, which option he chooses. (Doc. 26.) The Court further ordered Plaintiff to 1 identify the Doe defendants with enough information to locate the defendant for service of 2 process. The Court granted Plaintiff an opportunity through discovery to identify the unknown 3 Doe defendants. Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. 4 Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). The Court directed Plaintiff to file a motion to 5 amend his complaint once he identified the Doe defendants so that service by the United States 6 Marshal can be attempted. Therefore, the Court will send Plaintiff the appropriate service 7 documents at such time that Plaintiff ascertains the identities of the Doe defendants. However, if 8 Plaintiff fails to identify the Doe defendants during discovery, they will be dismissed. 9 The Court construes the instant motion as a motion for clarification. Insofar as Plaintiff 10 requests “the Court to please explain to him what is or is not cognizable by the screening order,” 11 (Doc. 27), the Court restates: “Plaintiff’s first amended complaint states a cognizable 12 Fourteenth Amendment failure to protect claim against John Does #1, #2, and #3. No 13 other cognizable claims as pled.” (Doc. 18 at 8.) (emphasis added). Accordingly, the Court 14 ORDERS: 15 1. Plaintiff shall notify the court, within 14 days, (1) whether he wishes to proceed 16 only on the claims found to be cognizable by the screening order, OR (2) that he wishes to stand 17 on the first amended complaint as pleaded. 18 2. Plaintiff shall identify the Doe defendants with enough information to locate the 19 defendants for service of process. 20 Failure to respond to this order by making an election will result in a 21 recommendation of dismissal of the non-cognizable claims. 22 IT IS SO ORDERED. 23 24 Dated: August 10, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 25 26 27 28