Phelps v. Mimms et al

Filing 23

ORDER DENYING 22 Request for Rule 45 Subpoena Without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 10/17/2014. Within thirty (30) days, Plaintiff shall file a status report as to his effort to identify John Doe SG-One and John Doe SG-Two. (Jessen, A)

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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 DENYING REQUEST FOR RULE
45 SUBPOENA WITHOUT PREJUDICE
THIRTY-DAY (30) 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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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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notified Plaintiff he must ascertain the identities of John Doe SG-One and John Doe SG-Two

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and on October 2, 2014, granted Plaintiff 90-days to identify John Doe SG-One and John Doe

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SG-Two.

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On October 16, 2014, Plaintiff filed a request for documents, which the Court construes

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as a request for a Rule 45 Subpoena, to Atascadero State Mental Hospital to release a copy of his

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police report which Plaintiff believes will have the names of the two arresting officers, John Doe

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SG-One and John Doe SG-Two.

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The Court will consider issuance of a Rule 45 Subpoena only if Plaintiff shows he has

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exhausted other avenues of relief. For instance, Plaintiff’s original complaint indicated one or

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both of the officers testified at Plaintiff’s preliminary hearing and Plaintiff’s prior counsel may

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be able to provide names and location information for John Doe SG-One and John Doe SG-Two.

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The Police Report also may be available from the City Police Records Bureau upon request.

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Plaintiff may be able to view his Central File as he is housed at Atascadero State Mental

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Hospital. In the alternative, court records of Plaintiff’s preliminary hearing/criminal case may be

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available to view by Plaintiff and/or family members.

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Plaintiff shall notify the Court within thirty days of his efforts to identify John Doe SGOne and John Doe SG-Two.

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ORDER

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Accordingly, based on Plaintiff=s notice, it is HEREBY ORDERED that:
1. Plaintiff=s Request for a Rule 45 subpoena to Atascadero State Mental Hospital is

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DENIED without prejudice.
2. Within 30 days, Plaintiff shall file a status report as to his effort to identify John Doe

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SG-One and John Doe SG-Two.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

October 17, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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