Thompson v. Allison

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SEKOU KWANE THOMPSON, Case No. 23-cv-05079-HSG

8 Plaintiff, ORDER GRANTING SECOND EXTENSION OF TIME TO FILE 9 v. SECOND AMENDED COMPLAINT

10 KATHLEEN ALLISON, et al., Re: Dkt. No. 18 11 Defendants.

12 13 Plaintiff, a prisoner currently housed at Correctional Training Facility (“CTF”), has filed a 14 pro se action pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the Court GRANTS 15 Plaintiff’s request for a second extension of time to file his second amended complaint. Dkt. No. 16 18. The Court GRANTS Plaintiff a final extension of time to January 31, 2025, to file his second 17 amended complaint. Failure to file a second amended complaint within the time will result in the 18 dismissal of this action without prejudice to re-filing once Plaintiff has identified the relevant 19 individual. 20 DISCUSSION 21 On October 3, 2024, the Court screened the amended complaint as follows. The Court 22 dismissed with prejudice the Eighth Amendment claim arising out of Plaintiff’s allegation that he 23 should not have been housed on an NDPF or on a Level II facility because of his Level I 24 classification. The Court dismissed with prejudice the named defendants – defendants Gipson, 25 Koenig, Ortega, Mak, Creamer, Esparza, and Hernandez – because this was the only claim 26 brought against these defendants. The Court dismissed the Eighth Amendment claim that a prison 27 official deliberately housed Plaintiff with an inmate known to be violent because the claim was 1 part because the United States Marshal cannot effect service on an unknown person and the case 2 cannot proceed without service on the opposing party. The Court granted Plaintiff leave to file a 3 second amended complaint naming this prison official. See generally Dkt. No. 15. 4 On October 28, 2024, Plaintiff requested a thirty-day extension of time to file his second 5 amended complaint, stating that while he had begun the process of obtaining the forms and 6 documents to identify the relevant prison official, he had not yet identified the relevant individual. 7 Dkt. No. 16. The Court granted Plaintiff an extension of time to December 6, 2024, to file his 8 second amended complaint. Dkt. No. 17. 9 On December 9, 2024, Plaintiff requested a second thirty-day extension of time to file his 10 second amended complaint. Dkt. No. 18. Plaintiff stated that, on October 24, 2024, he had 11 submitted a Public Records Act Request to litigation coordinator Enrique Galvan, and had also 12 contacted the Office of Labor Relations, in an effort to obtain the name of the relevant individual, 13 but had not yet received a response. Plaintiff attached to his request for an extension of time his 14 Form CDCR 1432 Request to Inspect Public Records wherein he requested the “CDCR Form 154 15 of IP Raymond Bankhead bed move to RB 139/up on 10/04/2021, and any and all documentations 16 authorizing the bed move and the signatures of all officers who approved.” Dkt. No. 18 at 7. The 17 Court GRANTS Plaintiff’s second request for an extension of time to file his second amended 18 complaint because the record shows that Plaintiff is making a good-faith effort to identify the 19 relevant correctional officer. The Court REQUESTS that Correctional Training Facility’s 20 Litigation Coordinator assist Plaintiff in identifying the relevant individual so that Plaintiff may 21 proceed with this action. 22 However, the Court is concerned that Plaintiff will be unable to state a cognizable Eighth 23 Amendment claim against this correctional officer for the following reason. It appears that 24 Plaintiff has had no interaction with this correctional officer. An Eighth Amendment claim 25 deliberate indifference to inmate safety claim requires Plaintiff to allege facts from which it can be 26 reasonably inferred that (1) the risk to Plaintiff’s safety posed by housing Plaintiff with inmate 27 Bankhead was obvious to the Doe correctional official or that the Doe correctional official was 1 Bankhead; and (2) there was no reasonable justification for exposing Plaintiff to the obvious or 2 known risk. Lemire v. Cal. Dept. Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013) 3 (articulating two-part test for deliberate indifference: plaintiff must show, first, that risk was 4 obvious or provide other evidence that prison officials were aware of substantial risk to inmates’ 5 safety, and second, no reasonable justification for exposing inmates to risk). In other words, the 6 prison official must both be aware of facts from which the inference could be drawn that a 7 substantial risk of serious harm exists, and he must also draw that inference. Farmer v. Brennan, 8 511 U.S. 825, 837 (1994). Neither negligence nor gross negligence will constitute deliberate 9 indifference. See id. at 825, 835-36 & n.4. Given that Plaintiff does not know the identity of the 10 correctional official who authorized housing inmate Bankhead with Plaintiff, it is unclear as to 11 how Plaintiff would know facts from which Plaintiff could be aware of what the Doe correctional 12 official knew or did not know. Conclusory allegations are insufficient to state a constitutional 13 claim. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (pleading that offers only labels and 14 conclusions or naked assertions devoid of further factual enhancement do not satisfy pleading 15 standard set forth in Fed. R. Civ. P. 8). 16 Because it is unclear whether Plaintiff can identify the relevant individual and whether 17 Plaintiff can state a cognizable Eighth Amendment claim against this individual even if he is able 18 to identify the relevant individual, this second extension of time is the final extension of time. The 19 Court is reluctant to keep this action open indefinitely while Plaintiff conducts the fact-finding that 20 normally is conducted prior to the commencement of an action. The Court GRANTS Plaintiff a 21 final extension of time to January 31, 2025, to file his second amended complaint. Failure to file a 22 second amended complaint within the time will result in the dismissal of this action. The 23 dismissal is without prejudice to Plaintiff filing a motion to reopen this action once he has 24 identified the relevant individual. Any motion to reopen must be accompanied by a proposed 25 second amended complaint identifying the relevant individual. 26 CONCLUSION 27 For the reasons set forth above, the Court ORDERS as follows. 1 second amended complaint. Dkt. No. 18. 2 2. The Court GRANTS Plaintiff a final extension of time to January 31, 2025, to file 3 || his second amended complaint. Failure to file a second amended complaint within the time will 4 || result in the dismissal of this action. The dismissal is without prejudice to Plaintiff filing a motion 5 || to reopen this action once he has identified the relevant individual. Any motion to reopen must be 6 accompanied by a proposed second amended complaint identifying the relevant individual. 7 3. The Court REQUESTS that Correctional Training Facility assist Plaintiff in 8 || identifying the relevant individual so that Plaintiff may proceed with this action. The Clerk is 9 directed to send a courtesy copy of this order to the Litigation Coordinator at Correctional 10 || Training Facility. 11 This order terminates Dkt. No. 18. 12 IT IS SO ORDERED. 5 13 || Dated: = 12/13/2024 Abeypred 5 Abe). 5 HAYWOOD S. GILLIAM, JR. United States District Judge 16

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