Moran v. Dovey et al

Filing 138

ORDER Regarding Objections to Pretrial Order; Defendants' Request to Correct the Record as to Defendant "DO" is Granted; Defendant "DO" is Dismissed signed by Magistrate Judge Gerald B. Cohn on 05/31/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICOLAS MORAN,

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Plaintiff,

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CASE NO. 1:08-cv-00016-GBC (PC)
ORDER REGARDING OBJECTIONS TO
PRETRIAL ORDER

v.
DEFENDANTS’ REQUEST TO CORRECT
THE RECORD AS TO DEFENDANT “DO” IS
GRANTED (Doc. 124)

JOHN DOVEY, et al.,

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Defendants.
DEFENDANT “DO” IS DISMISSED (Doc. 124)

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/

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I.

Factual and Procedural Background

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Plaintiff Nicolas Moran ("Plaintiff") is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on
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Plaintiff's second amended complaint, filed on November 18, 2008. Doc. 20; Doc. 29; Doc. 30. On
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May 15, 2012, the Court issued a pretrial order. Doc. 123. On May 17, 2012, Defendants filed
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objections to the pretrial order. Doc. 124. On May 23, 2012, Plaintiff filed objections to the pretrial
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order. Doc. 129.
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II.

Defendants’ Objections

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a.

Objection to Inclusion of “Do” as a Defendant

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Defendants object to listing “Do” as a defendant in the trial given that “Do” is actually a
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“John Doe” whose name has never been determined and the Court has dismissed all the remaining
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Doe defendants in its original pretrial order. Doc. 123 at 8 (Pretrial Order); Doc. 124 (Defendants’
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objection to pretrial order).
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b.

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The Court previously noted that “[i]t is not clear if Defendant Do is a John Doe defendant

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or not. Plaintiff will need to clarify the status when it is time for service of process because the

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Marshal cannot initiate service on unknown defendants.” Doc. 21 at 4 n.3; Doc. 32 at 2 n.2.

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Plaintiff did not clarify the status of the “Do” defendant. Moreover, “Do” was never served pursuant

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to Rule 4(m) of the Federal Rules of Civil Procedure nor did Plaintiff seek to amendment pursuant

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to Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure.

Court’s Ruling

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In Plaintiff’s pretrial statement, he identifies “Do” as actually being a “John Doe” defendant.

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Doc. 115 at 1. Additionally, Defendants demonstrate that in the deposition of Plaintiff, Plaintiff

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states that he does not know the name of “John Do” and that “Do” was, in fact, a John Doe. Doc.

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124 at 2; Doc. 124-1 (Exhibit A-Excerpt of Plaintiff’s Deposition).

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Plaintiff had ample opportunity during discovery to determine the true name of the “John

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Doe” defendant, however, Plaintiff did not exercise due diligence in determining the name of the

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“John Doe” defendant, nor did Plaintiff follow Rule 4(m) or Rule 15(c)(1)(C) of the Federal Rules

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of Civil Procedure to make any necessary amendments to any of the names of the defendants or to

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properly serve any different defendant. Based on the foregoing, the Court recognizes that “Do” is,

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in fact, a “John Doe” Defendant. The Defendants’ request for relief is GRANTED and the Court

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corrects the record to find that Defendant “Do” is actually a “Doe” defendant and is dismissed with

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the remaining “Doe” defendants.

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III.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Defendants’ request to correct the record to find that Defendant “Do” is actually a
“Doe” defendant is GRANTED; and

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2.

Defendant “Do” is dismissed with the remaining “Doe” defendants.

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IT IS SO ORDERED.

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Dated:
0jh02o

May 31, 2012
UNITED STATES MAGISTRATE JUDGE

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