Michael D. Bolton v. Steve’s Towing, ET AL.

• Court: District Court, C.D. California
• Decided: July 22, 2024
• Docket: 5:23-cv-00941
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL D. BOLTON, Case No. 5:23-cv-00941-JLS-AJR 12 Plaintiff, ORDER TO SHOW CAUSE WHY THIS 13 v. ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE 14 STEVE’S TOWING, ET AL., 15 Defendants. 16 17 18 On May 23, 2023, pro se Plaintiff Michael D. Bolton (“Plaintiff”), filed a 19 Complaint alleging violations of 42 U.S.C. § 1983 (the “Complaint”) against the 20 following defendants in their individual and official capacities: (1) Steve’s Towing, 21 “Marcia” Impounds/Storage Clerk; and (2) “John Jane Doe’s, Attendents Steve’s 22 Impound Bus. [sic].” (Dkt. 1.) On September 1, 2023, the Court dismissed 23 Plaintiff’s Complaint with leave to amend for various pleading deficiencies and 24 ordered Plaintiff to file a First Amended Complaint (“FAC”). (Dkt. 9.) On 25 November 16, 2023, Plaintiff filed a FAC naming the following defendants: (1) 26 “the defendant,” (2) “john does,” (3) “Officer David Thomas,” and (4) “the 27 privately owned business and municipality agency.” (Dkt. 21.) The Court again 28 1 dismissed Plaintiff’s FAC on November 22, 2023, for failure to state a Section 2 1983 claim against non-state actors, failure to allege each defendant’s personal 3 participation, and failure to comply with Federal Rule of Civil Procedure 8. (Dkt. 4 23.) 5 Plaintiff subsequently filed a Second Amended Complaint (“SAC”) naming 6 (1) Sheriff David Thomas in his individual and official capacity; (2) the owners of 7 Steve’s Towing in their individual capacities; (3) John Doe, in his individual 8 capacity; and (4) Jane Doe, in her individual capacity. (Dkt. 29 at 2-3.) On March 9 22, 2024, the Court dismissed Plaintiff’s SAC with leave to amend for failure to 10 state a claim under Section 1983 against non-state actors, failure to allege each 11 defendant’s personal participation, failure to comply with Federal Rule of Civil 12 Procedure 8, and failure to make sufficient allegations supporting a municipal 13 liability claim under Monell v. N.Y. Cty. Dep’t of Soc. Serv., 436 U.S. 658, 691 14 (1978). (Dkt. 31.) The Court directed Plaintiff to file a Third Amended Complaint 15 (“TAC”), if any, by April 21, 2024. (Id. at 6.) 16 On May 13, 2024, having not received an amended complaint, the Court 17 issued a Report and Recommendation that the action be dismissed for failure to 18 prosecute. (Dkt. 32.) The Court subsequently received and reviewed Plaintiff’s 19 April 22, 2024 Motion for Discovery. (Dkt. 34 (entered on May 29, 2024).) In the 20 Motion for Discovery, Plaintiff requested discovery to identify the Doe Defendants 21 presumably named in the already-dismissed SAC. (Id. at 1 (“Plaintiff has requested 22 the information of the defendant in the above . . . John Doe, Jane Doe individuals 23 who towed [Plaintiff’s] vehicle in this civil case.”).) 24 On May 30, 2024, the Court issued an order advising Plaintiff that he did not 25 need to identify John and Jane Doe by name in an amended complaint. (Dkt. 35.) 26 Accordingly, the Court denied Plaintiff’s Motion for Discovery without prejudice 27 as unnecessary at that time. (Id.) Further, the Court vacated the May 13, 2024 28 Report and Recommendation and extended Plaintiff’s deadline to file a TAC to July 1 1, 2024. (Id. at 2.) Plaintiff was once again warned that his case could not forward 2 unless and until he filed an amended complaint. (Id. at 2-3.) The Court warned that 3 if Plaintiff did not timely file an amended complaint, the Court would recommend 4 that the action be dismissed with prejudice for failure to prosecute and obey court 5 orders. (Id. at 3.) On June 11, 2024, Plaintiff filed a Motion for Injunctive Relief. 6 (Dkt. 36.) 7 On June 23, 2024, Judge Staton denied Plaintiff’s Motion for Injunctive 8 Relief because Plaintiff had not met the standard to justify the extraordinary remedy 9 of injunctive relief. (Dkt. 37.) As an initial matter, Plaintiff had not provided either 10 an affidavit or verified complaint to support his factual allegations. See Fed. R. 11 Civ. P. 65(b)(1)(A). Moreover, Plaintiff’s factual allegations were both conclusory 12 and wholly incredible to the extent Plaintiff sought relief from remote “neural 13 monitoring.” See, e.g., Denton v. Hernandez, 504 U.S. 25, 32 (1992) (courts need 14 not accept factual allegations that are clearly baseless, fanciful, fantastic, 15 delusional, irrational, or wholly incredible). Furthermore, Judge Staton’s order 16 noted that there was no operative complaint to support a request for injunctive 17 relief. (Dkt. 37 at 4-5.) Accordingly, Plaintiff could not show a relationship 18 between the injury claimed in the Motion for Injunctive Relief and the conduct 19 asserted in the underlying complaint. See Pac. Radiation Oncology, LLC, 810 F.3d 20 at 635. Plaintiff was once again directed to file a TAC and to include a request for 21 injunctive relief, if any, in the amended complaint. (Dkt. 37 at 5.) 22 Three weeks have passed since Plaintiff’s deadline to file a TAC. As of 23 today, Plaintiff has not filed an amended complaint or requested an extension of 24 time. The action cannot move forward unless and until Plaintiff files an amended 25 complaint. Plaintiff is ordered to file a TAC, if any, by August 5, 2024 or show 26 cause why the action should not be dismissed with prejudice for failure to 27 prosecute. If Plaintiff chooses to file a TAC, it should attempt to remedy the 28 pleading defects identified in the March 22, 2024 dismissal order (Dkt. 31), bear the 1 || docket number assigned to this case (5:23-cv-00941-JLS-AJR), be labeled “Third 2 || Amended Complaint,” and be complete in and of itself without reference to the 3 || original Complaint or any other document (except any document that Plaintiff 4 || chooses to attach to the TAC as an exhibit). Plaintiff is encouraged to state his 5 || claims in simple language and provide only a brief statement of supporting facts, 6 || omitting facts that are not relevant. Should Plaintiff decide to file a TAC, he is 7 || strongly encouraged to utilize the form complaint attached to this Order. 8 Plaintiff is expressly advised that if he does not file a TAC by the Court’s 9 || deadline, the Court will recommend that this action be dismissed with 10 || prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to 11 || prosecute and obey Court orders. If Plaintiff no longer wishes to pursue this 12 || action or certain claims or defendants, he may voluntarily dismiss the entire action, 13 || certain claims, or certain defendants by filing a Notice of Dismissal in accordance 14 || with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is 15 || attached for Plaintiff’s convenience. 16 17 IT IS SO ORDERED. 18 19 |) DATED: July 22, 2024 . 20 a Ue RICHLIN UNITED STATES MAGISTRATE JUDGE 22 53 || Attachments: D4 CV-09, Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or

(c). 36 Pro Se 15, Complaint for Violation of Civil Rights (Non-Prisoner), available at

54 https://www.uscourts.gov/forms/pro-se-forms/complaint-violation-civil-rights-non- 5g || Prisoner.