Jesse Youngblood v. 5 Unknown Cim Correctional Off , 536 F. App'x 758 ( 2013 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                            AUG 05 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    JESSE L. YOUNGBLOOD,                             No. 12-57237
    Plaintiff - Appellant,            D.C. No. 5:11-cv-01625-JAK-CFE
    v.
    MEMORANDUM *
    5 UNKNOWN CIM CORRECTIONAL
    OFFICERS,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    John A. Kronstadt, District Judge, Presiding
    Submitted July 24, 2013 **
    Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
    Jesse L. Youngblood, a California state prisoner, appeals pro se from the
    district court’s judgment dismissing his 
    42 U.S.C. § 1983
     action alleging cruel and
    unusual punishment. We have jurisdiction under 
    28 U.S.C. § 1291
    . We review for
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    an abuse of discretion a district court’s dismissal for failure to serve, Puett v.
    Blandford, 
    912 F.2d 270
    , 275 (9th Cir. 1990), and for failure to comply with a
    court order, Ash v. Cvetkov, 
    739 F.2d 493
    , 495 (9th Cir. 1984). We vacate and
    remand.
    Dismissal of Youngblood’s action for failure to effect service was premature
    as Youngblood should have been given an opportunity to identify the defendants
    through limited discovery. See Gillespie v. Civiletti, 
    629 F.2d 637
    , 642 (9th Cir.
    1980) (holding that where a plaintiff is unaware of the identity of alleged
    defendants, “plaintiff should be given an opportunity through discovery to identify
    the unknown defendants, unless it is clear that discovery would not uncover the
    identities or that the complaint would be dismissed on other grounds”); see also
    Fed. R. Civ. P. 45 (permitting third party subpoenas); Fed. R. Civ. P.
    26(d) (prohibiting discovery prior to a Rule 26(f) conference except “when
    authorized . . . by court order”).
    To the extent that the district court dismissed Youngblood’s action without
    prejudice for failure to comply with a court order, the district court abused its
    discretion because the court failed to consider less drastic alternatives. See
    Pagtalunan v. Galaza, 
    291 F.3d 639
    , 643 (9th Cir. 2002) (listing factors to
    consider before dismissing for failure to comply with a court order and explaining
    2                                        12-57237
    that warning of dismissal for failure to comply prior to disobedience of the court
    order did not constitute consideration of less drastic alternatives); Ferdik, 963 F.2d
    at 1260 (“[D]ismissal is a harsh penalty and, therefore, it should only be imposed
    in extreme circumstances.”).
    Youngblood’s “application in support of summons/complaint,” submitted on
    July 1, 2013, is denied without prejudice to renewal before the district court on
    remand.
    VACATED AND REMANDED.
    3                                    12-57237
    

Document Info

Docket Number: 12-57237

Citation Numbers: 536 F. App'x 758

Judges: Alarcon, Callahan, Clifton

Filed Date: 8/5/2013

Precedential Status: Non-Precedential

Modified Date: 8/7/2023