Cataldo v. Madox

• Court: District Court, S.D. California
• Decided: February 12, 2020
• Docket: 3:16-cv-02747
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID J. CATALDO, Case No.: 3:16-cv-2747-JAH-WVG CDCR #T-79908, 12 ORDER: Plaintiff, 13 v. 1) REINSTATING ORDER 14 GRANTING DEFENDANT COUNTY SHERIFF DEPUTY MADOX, Vista 15 OF SAN DIEGO’S MOTION TO Detention Facility; JOHN DOES, GBDF DISMISS SECOND AMENDED 16 Medical Staff; Dr. QUOC TRAN; COMPLAINT COUNTY OF SAN DIEGO, 17 [ECF No. 35] Defendants. 18 AND 19 2) DISMISSING CIVIL ACTION 20 FOR FAILURE TO PROSECUTE 21 PURSUANT TO Fed. R. Civ. P 41(b) 22 23 On May 14, 2018, Defendant County of San Diego filed a Motion to Dismiss 24 Plaintiff’s Second Amended Complaint (“SAC”) pursuant to Fed. R. Civ. P. 12(b)(6). See 25 ECF No. 35. Plaintiff, a prisoner then represented by pro bono counsel, filed a Notice of 26 Non-Opposition, and on June 7, 2018, the Court granted the County’s Motion. See ECF 27 Nos. 36, 37. 28 /// 1 Nine months later, on March 25, 2019, after no further action on Plaintiff’s part, 2 and after no waiver or proof of service upon any other Defendant named in the SAC had 3 been filed, see Fed. R. Civ. P. 4(l)(1), the Court ordered Plaintiff to show cause why the 4 remainder of his case should not be dismissed for failure to prosecute pursuant to Local 5 Rule 41.1. See ECF No. 40. Plaintiff’s counsel filed a Response (ECF No. 41), together 6 with a Motion seeking to withdraw as Plaintiff’s counsel of record (ECF No. 42). 7 In light of these submissions, on May 6, 2019, the Court continued and re-set both 8 matters for hearing on May 24, 2019. See ECF Nos. 44, 45. The Court ordered Plaintiff’s 9 counsel to appear at that hearing, and to arrange for Plaintiff to appear telephonically. See 10 ECF No. 45. On May 24, 2019, the Court granted Plaintiff’s pro bono counsel’s Motion 11 to Withdraw, set aside its previous Order granting the County’s Motion to Dismiss, and 12 granted Plaintiff until September 10, 2019 to file an Opposition. See ECF Nos. 46, 47. 13 On July 11, 2019, Plaintiff filed a letter with the Court requesting appointment of 14 another pro bono attorney, and attaching portions of his medical records confirming his 15 various physical ailments and learning disabilities. See ECF No. 50. But after he failed to 16 file an Opposition on September 10, 2019, the County filed yet another Notice of Non- 17 Opposition, requesting that the Court’s June 7, 2018 Order be reinstated. See ECF No. 18 51. 19 In the meantime, and in response to Plaintiff’s July 11, 2019 letter, the Court 20 renewed its efforts to locate another volunteer to represent Plaintiff from its Pro Bono 21 Panel, but was unsuccessful. On October 4, 2019, however, the Court held another 22 telephonic status hearing, notified both Plaintiff and County Counsel that it would 23 continue its search, but cautioned Plaintiff he was not entitled to the appointment of 24 counsel and would be required to prosecute his case pro se unless another attorney 25 volunteered. See ECF No. 52. The Court then stayed the case and set another status 26 hearing for December 16, 2019. See ECF No. 54. 27 At the December 16, 2019 status hearing, Plaintiff indicated on the record that he 28 was scheduled for early parole release sometime in January, but still wished to prosecute 1 his case. Therefore, the Court agreed to continue its search for pro bono counsel, this time 2 with the gracious assistance of the San Diego Volunteer Lawyer Program, but again 3 cautioned Plaintiff that if its attempts were unsuccessful, he would be required to proceed 4 on his own. The Court further ordered Plaintiff to file a Notice of Change of Address 5 upon his release from custody as required by S.D. Cal. CivLR 83.11.b, and set another 6 telephonic status hearing for February 10, 2020. See ECF No. 54. 7 On February 10, 2020, the Court held that hearing, but Plaintiff failed to appear. 8 The Court confirmed Plaintiff is no longer in custody of the California Department of 9 Corrections and Rehabilitation, and noted he has failed to comply with the Court’s 10 December 16, 2019 Order requiring him to file a change of address. See 11 https://inmatelocator.cdcr.ca.gov/Results.aspx (last visited Feb. 20, 2020); Pacheco v. 12 Diaz, No. 1:19-CV-00774-SAB PC, 2019 WL 5073594, at *2 n.1 (E.D. Cal. Sept. 4, 13 2019) (“The Court may take judicial notice of public information stored on the CDCR 14 inmate locator website.”), report and recommendation adopted, No. 1:19-CV-00774- 15 LJO-SAB PC, 2019 WL 5063451 (E.D. Cal. Oct. 9, 2019); In re Yahoo Mail Litig., 7 16 F.Supp.3d 1016, 1024 (N.D. Cal. 2014) (court may take judicial notice of information on 17 “publicly accessible websites” not subject to reasonable dispute); Louis v. McCormick & 18 Schmick Restaurant Corp., 460 F. Supp. 2d 1153, 1155 fn.4 (C.D. Cal. 2006) (court may 19 take judicial notice of state agency records). County Counsel therefore again requested 20 that the Court reinstate its June 7, 2018 Order granting its Motion to Dismiss Plaintiff’s 21 SAC with prejudice based both on his failure to state a claim pursuant to Fed. R. Civ. P. 22 12(b)(6) and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 23 The Court agrees dismissal is now appropriate. 24 Conclusion and Order 25 Accordingly, the Court hereby: 26 1) Reinstates its June 7, 2018 Order Granting Defendant County of San 27 Diego’s Motion to Dismiss Plaintiff’s Second Amended Complaint pursuant to Fed. R. 28 Civ. P. 12(b)(6) [ECF No. 35]; and 1 2) Dismisses the remainder of this civil action in its entirety based on 2 || Plaintiffs failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 3 IT IS SO ORDERED. 4 5 || Dated: February 11, 2020 VU 6 n. John A. Houston 7 Wnited States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4