Phelps v. Mimms et al

Filing 21

ORDER Dismissing Certain Claims; Finding Service of Complaint Appropriate; and Requiring Plaintiff to Identify Doe Defendants within Ninety Days, signed by Magistrate Judge Barbara A. McAuliffe on 10/2/14. 90-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY PHELPS, Sr.

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Plaintiffs,
v.

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MARGARET MIMMS, JERRY DYER,

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Defendant.

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Case No. 1:14-cv-251-AWI-BAM
ORDER (1) DISMISSING CERTAIN
CLAIMS; (2) FINDING SERVICE OF
COMPLAINT APPROPRIATE; AND (3)
REQUIRING PLAINTIFF TO IDENTIFY
DOE DEFENDANTS WITHIN NINETY
DAYS
(ECF No. 18 and 19)
NINETY-DAY (90) DEADLINE

Plaintiff Tony Phelps, Sr. (“Plaintiff”) is proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his consent to Magistrate Judge

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Jurisdiction on March 5, 2014. (Doc. 4.) On September 4, 2014, the Court screened Plaintiff’s

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Second Amended Complaint and found Plaintiff’s complaint states a cognizable claim against

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Defendants John Doe SG-One and John Doe SG-Two for violation of the Fourth Amendment for

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keeping the spit mask on Plaintiff for the duration of his detainment, but found that the complaint

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failed to state any other cognizable claim.

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The Court ordered Plaintiff to either file an amended complaint or notify the Court of his

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willingness to proceed only on the claim found to be cognizable. On October 1, 2011, Plaintiff

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filed a notice stating that he does not wish to amend and he is willing to proceed only on his

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cognizable claim. Therefore, this case will proceed on the cognizable claim and all other claims

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will be dismissed.

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In its screening order, the Court informed Plaintiff that the inclusion of Doe defendants

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under these circumstances is permissible, as plaintiff may amend the complaint pursuant to Rule

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15 of the Federal Rules of Civil Procedure once the identity of defendants is known through

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discovery or other means. Merritt v. Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989); see Swartz

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v. Gold Dust Casino, Inc., 91 F.R.D. 543, 547 (D. Nev. 1981). The Court also notified Plaintiff

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that United States Marshal cannot initiate service on unknown defendants. Therefore, the Court

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will send Plaintiff appropriate service documents at such time as Plaintiff ascertains the identities

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of John Doe SG-One and John Doe SG-Two.

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Plaintiff requests a 90-day continuance to identify the Doe defendants. (Doc. 19.) Based

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on good cause shown, Plaintiff’s request for a 90-day continuance for Plaintiff to identify the

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Doe defendants is GRANTED. The Court will issue the appropriate forms for service of process

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only after Plaintiff has provided sufficient identifying information to permit service.

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ORDER

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Accordingly, based on Plaintiff=s notice, it is HEREBY ORDERED that:

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1.

This action for damages shall proceed against Defendants John Doe SG-One and

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John Doe SG-Two for violation of the Fourth Amendment for keeping the spit mask on Plaintiff

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for the duration of his detainment;

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2.

for failure to state a claim;

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All other claims in the Second Amended Complaint are dismissed, with prejudice,

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Within 90 days from the date of service of this Order, Plaintiff shall provide the

names and sufficient information as to the location of John Doe SG-One and John Doe SG-Two
to permit the Marshal to initiate service of process. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
Plaintiff will then be provided with two summonses and two USM–285 forms for completion
and return. Upon receipt of the forms and copies of the second amended complaint, the Court
will direct the United States Marshal to initiate service of process on the identified defendants.
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4.

If Plaintiff fails to comply with this order, this action will be dismissed for failure

to obey a court order.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

October 2, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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