Jesse L. Youngblood v. 5 Unknown Cim Correctional Officers

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE L. YOUNGBLOOD,
Plaintiff - Appellant,
v.
5 UNKNOWN CIM CORRECTIONAL
OFFICERS,
Defendants - Appellees.
No. 12-57237
D.C. No. 5:11-cv-01625-JAK-CFE
MEMORANDUM*
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
FILED
AUG 05 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

12-57237 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 of 3 --

12-57237 3
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 of 3 --