Clinkscale v. Brown et al

Filing 9

ORDER re 6 Order: IT IS ORDERED: (1) Withdrawing the reference from the Magistrate Judge as to the portion of the October 28, 2011 Order concerning Defendants Doe I, Doe II, and Doe III, doc. 6 at 10. (2) The portion of the October 28, 2011 Order concerning Defendants Doe I, Doe II, and Doe III is vacated. (Doc. 6 at 10.) (See document for further details). Signed by Judge Robert C Broomfield on 11/10/11. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lawrence V. Clinkscale,

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Plaintiff,

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vs.

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C.O. Brown, et al.,

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Defendants.

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No. CV 11-1792-PHX-RCB (DKD)
ORDER

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Plaintiff Lawrence V. Clinkscale, who is confined in the Arizona State Prison

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Complex, Special Management Unit I (SMUI), in Florence, Arizona, filed a pro se civil

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rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On October 28, 2011, the Court

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ordered service of the Complaint on Defendant Brown. (Doc. 6.) In the same Order, the

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Clerk of Court was ordered to issue subpoenas in blank to Plaintiff for use to discover the

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identities of three fictitiously-named Defendants. (Id. at 10.) Subsequently, Plaintiff

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returned two subpoenas addressed to the Warden of the Arizona State Prison Complex-

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Eyman and the Director of the Arizona Department of Corrections. (Doc. 8.) In the

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subpoenas, Plaintiff incorrectly directed the Warden and Director, respectively, to produce

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requested documents to themselves. (Doc. 8.)

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As the Court previously stated, the Ninth Circuit has held that where identity is

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unknown prior to the filing of a complaint, the plaintiff should be given an opportunity

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through discovery to identify the unknown defendant, unless it is clear that discovery would

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not uncover the identities, or that the complaint would be dismissed on other grounds.

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Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti,

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629 F.2d 637, 642 (9th Cir. 1980)). Rather than order new subpoenas to be issued to Plaintiff

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by the Clerk of Court, the Court will vacate the portions of its prior Order concerning the

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Doe Defendants, doc. 6 at 10.

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Does I to III, named in Plaintiff's Complaint, will not be served at this time. Plaintiff

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may use discovery processes to obtain the actual names of Does I to III. If Plaintiff discovers

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the true identity of these fictitious parties through the discovery process, or otherwise, he may

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seek leave of the Court to amend his complaint to name the individuals in place of

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Defendants Doe I to III and effectuate service on those individuals.

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Warnings

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A.

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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in dismissal of this action.

Release

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B.

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

Address Changes

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C.

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Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy

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of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate

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stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit

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an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply

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may result in the filing being stricken without further notice to Plaintiff.

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Copies

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D.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

Withdrawing the reference from the Magistrate Judge as to the portion of the

October 28, 2011 Order concerning Defendants Doe I, Doe II, and Doe III, doc. 6 at 10.
(2)

The portion of the October 28, 2011 Order concerning Defendants Doe I, Doe

II, and Doe III is vacated. (Doc. 6 at 10.)

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Dated this 10 th day of November, 2011.

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copies of all counsel of record and plaintiff pro se

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