Clinkscale v. Brown et al
Filing
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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. ยง 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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